BILL NUMBER: SB 496 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 25, 2013
AMENDED IN ASSEMBLY JUNE 11, 2013
AMENDED IN SENATE APRIL 15, 2013
INTRODUCED BY Senator Wright
FEBRUARY 21, 2013
An act to amend Sections 905 905.2
and 19683 of, and to add Section 8547.15 to, the Government Code, and
to amend Section 1102.5 of the Labor Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
SB 496, as amended, Wright. California Whistleblower
Protection Act: administrative procedure. Improper
governmental activity: disclosure: protection.
(1) The Government Claims Act sets forth the general procedure for
the presentation of a claim for money or damages against the state.
This bill would create an exception to the general procedure for a
claim alleging a violation of the California Whistleblower
Protection Act.
Existing law, the
(2) The California Whistleblower
Protection Act , provides that a person making a protected
disclosure, as defined, about an improper governmental activity is to
be free of intimidation or threat and that a person who
intentionally engages in prohibits acts of
reprisal, retaliation, coercion, or similar acts against a state
employee or an applicant for state employment for having
who made a protected disclosure is
subject to civil liability and criminal penalties. Existing law also
provides that civil damages are available to an injured party only if
the State Personnel Board has issued, or failed to issue, findings
pursuant to specified procedures. Existing law
relating to an improper governmental activity, as defined. The State
Civil Service Act requires the State Personnel Board to
initiate a hearing or investigation of a complaint of reprisal or
retaliation in violation of the California Whistleblower Protection
Act within 10 working days . Existing law also requires
and the executive officer of the board to
complete the findings of the hearing or investigation
within 60 working days , but if the allegations contained in
the complaint of reprisal or retaliation are the same or similar to
those contained in another appeal, the . The State
Civil Service Act authorizes the executive officer may
to consolidate the appeals, in which
case the time limits do not apply. a case with the
same or similar allegations to those contained in an appeal and
exempts consolidated cases from the time limits for hearings,
investigations, and findings.
This bill would instead require modify
these requirements to instead require the board to initiate an
informal hearing or investigation to occur within
10 working days of submission of a complaint,
followed by an evidentiary hearing, and the executive
officer to complete the findings of the informal hearing within 60
working days, as specified. This bill wou ld
authorize the executive officer to consolidate a complaint with a
related appeal and exempt the consolidated case from the proscribed
time limits. The bill would provide that after an
evidentiary hearing, authorize an aggrieved
party to the decision may file a petition for writ
of mandate for review of the decision, as specified. The bill would
further provide that deem the
complainant is deemed to have exhausted his or her
administrative remedies and may would
authorize the complainant to file an a
civil action for civil damages after
either 70 working days from submitting the complaint
to the board or sooner if the issuance of
findings by the executive officer issues findings or
refers a consolidated appeal to an evidentiary hearing, as specified
, whichever is sooner . The bill would provide
that the executive officer's findings of the informal hearing or
investigation are not binding or entitled to deference in
a subsequent State Personnel Board evidentiary hearing or in a civil
action for damages. The bill would specify that the filing of a civil
action by a complainant does not preclude the request for an
evidentiary hearing by a supervisor, manager, employee, or appointing
power whom the executive office has found to have retaliated against
the complainant nor does the request for an evidentiary hearing
preclude the complainant's right to file an independent civil action,
as specified. The bill would also make other technical changes.
The act further authorizes the State Auditor to investigate and
report whether it finds that a state agency or employee may have
engaged or participated in an improper governmental activity. Under
the act, any person who intentionally engages in acts of reprisal,
retaliation, threats, coercion, or similar acts against a state
employee or applicant for state employment for having made a
disclosure that may evidence an improper governmental activity or
dangerous condition is subject to, among other things, liability in
an action for damages brought against him or her by the injured
party. Existing law, the Government Claims Act, sets forth the
general procedure for the presentation of claims as a prerequisite to
commencement of actions for money or damages against the State of
California, counties, cities, cities and counties, districts, local
authorities, and other political subdivisions of the state, and
against the officers, employees, and servants of those entities.
This bill would establish an exception for an action for damages
pursuant to the California Whistleblower Protection Act from the
claims presentation requirements of the Government Claims Act.
Existing
(3) Existing law prohibits an
employer from making, adopting, or enforcing any rule, regulation, or
policy preventing an employee from disclosing information to a
government or law enforcement agency, if the employee has reasonable
cause to believe that the information discloses a violation of state
or federal statute, or a violation of or noncompliance with a state
or federal rule or regulation. Existing law prohibits any employer
from retaliating against an employee for disclosing information to a
government or law enforcement agency pursuant to these provisions or
for refusing to participate in an activity that would result in a
violation of a state or federal statute or noncompliance with a state
or federal rule or regulation. Under existing law, an employer who
violates these provisions is guilty of a crime.
This bill would expand these provisions to prohibit an employer
from making, adopting, or enforcing any rule, regulation, or policy
preventing an employee from disclosing information to a government or
law enforcement agency, if the employee has reasonable cause to
believe that the information discloses a violation of or
noncompliance with a local rule or regulation. The bill would
prohibit an employer from retaliating against an employee because the
employer perceives believes that the
employee disclosed or may disclose information to a
government or law enforcement agency, or to a person with authority
over the employee or another employee who has the authority to
investigate, discover, or correct the violation, if the employee has
reasonable cause to believe that the information discloses a
violation of state or federal statute, or a violation of or
noncompliance with a local, state, or federal rule or regulation. The
bill would also prohibit an employer from retaliating against an
employee for disclosing, or refusing to participate in an activity
that would result in, a violation of or noncompliance with a local
rule or regulation.
Because
(4) Because this bill would change
the definition of a crime, this bill would impose a state-mandated
local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 905 of the Government Code
is amended to read:
905. There shall be presented in accordance with Chapter 1
(commencing with Section 900) and Chapter 2 (commencing with Section
910) all claims for money or damages against local public entities
except any of the following:
(a) Claims under the Revenue and Taxation Code or other statute
prescribing procedures for the refund, rebate, exemption,
cancellation, amendment, modification, or adjustment of any tax,
assessment, fee, or charge or any portion thereof, or of any
penalties, costs, or charges related thereto.
(b) Claims in connection with which the filing of a notice of
lien, statement of claim, or stop notice is required under any law
relating to liens of mechanics, laborers, or materialmen.
(c) Claims by public employees for fees, salaries, wages, mileage,
or other expenses and allowances.
(d) Claims for which the workers' compensation authorized by
Division 4 (commencing with Section 3200) of the Labor Code is the
exclusive remedy.
(e) Applications or claims for any form of public assistance under
the Welfare and Institutions Code or other provisions of law
relating to public assistance programs, and claims for goods,
services, provisions, or other assistance rendered for or on behalf
of any recipient of any form of public assistance.
(f) Applications or claims for money or benefits under any public
retirement or pension system.
(g) Claims for principal or interest upon any bonds, notes,
warrants, or other evidences of indebtedness.
(h) Claims that relate to a special assessment constituting a
specific lien against the property assessed and that are payable from
the proceeds of the assessment, by offset of a claim for damages
against it or by delivery of any warrant or bonds representing it.
(i) Claims by the state or by a state department or agency or by
another local public entity or by a judicial branch entity.
(j) Claims arising under any provision of the Unemployment
Insurance Code, including, but not limited to, claims for money or
benefits, or for refunds or credits of employer or worker
contributions, penalties, or interest, or for refunds to workers of
deductions from wages in excess of the amount prescribed.
(k) Claims for the recovery of penalties or forfeitures made
pursuant to Article 1 (commencing with Section 1720) of Chapter 1 of
Part 7 of Division 2 of the Labor Code.
( l ) Claims governed by the Pedestrian Mall
Law of 1960 (Part 1 (commencing with Section 11000) of Division 13 of
the Streets and Highways Code).
(m) Claims made pursuant to Section 340.1 of the Code of Civil
Procedure for the recovery of damages suffered as a result of
childhood sexual abuse. This subdivision shall apply only to claims
arising out of conduct occurring on or after January 1, 2009.
(n) Claims made pursuant to Section 701.820 of the Code of Civil
Procedure for the recovery of money pursuant to Section 26680.
(o) Claims made pursuant to Section 49013 of the Education Code
for reimbursement of pupil fees for participation in educational
activities.
(p) Claims made for a violation of Article 3 (commencing with
Section 8547) of Chapter 6.5 of Division 1 of Title 2.
SECTION 1. Section 905.2 of the
Government Code is amended to read:
905.2. (a) This section shall apply to claims against the state
filed with the California Victim Compensation and Government Claims
Board.
(b) There shall be presented in accordance with Chapter 1
(commencing with Section 900) and Chapter 2 (commencing with Section
910) all claims for money or damages against the state:
(1) For which no appropriation has been made or for which no fund
is available but the settlement of which has been provided for by
statute or constitutional provision.
(2) For which the appropriation made or fund designated is
exhausted.
(3) For money or damages on express contract, or for an injury for
which the state is liable.
(4) For which settlement is not otherwise provided for by statute
or constitutional provision.
(c) Claimants shall pay a filing fee of twenty-five dollars ($25)
for filing a claim described in subdivision (b). This fee shall be
deposited into the General Fund and may be appropriated in support of
the board as reimbursements to Item 1870-001-0001 of Section 2.00 of
the annual Budget Act.
(1) The fee shall not apply to the following persons:
(A) Persons who are receiving benefits pursuant to the
Supplemental Security Income (SSI) and State Supplemental Payments
(SSP) programs (Section 12200 to 12205, inclusive, of the Welfare and
Institutions Code), the California Work Opportunity and
Responsibility to Kids Act (CalWORKs) program (Chapter 2 (commencing
with Section 11200) of Part 3 of Division 9 of the Welfare and
Institutions Code), the Food Stamp program (7 U.S.C. Sec. 2011 et
seq.), or Section 17000 of the Welfare and Institutions Code.
(B) Persons whose monthly income is 125 percent or less of the
current monthly poverty line annually established by the Secretary of
California Health and Human Services pursuant to the federal Omnibus
Budget Reconciliation Act of 1981 (Public Law 97-35), as amended.
(C) Persons who are sentenced to imprisonment in a state prison or
confined in a county jail, or who are residents in a state
institution and, within 90 days prior to the date the claim is filed,
have a balance of one hundred dollars ($100) or less credited to the
inmate's or resident's trust account. A certified copy of the
statement of the account shall be submitted.
(2) Any claimant who requests a fee waiver shall attach to the
application a signed affidavit requesting the waiver and verification
of benefits or income and any other required financial information
in support of the request for the waiver.
(3) Notwithstanding any other provision of law, an applicant shall
not be entitled to a hearing regarding the denial of a request for a
fee waiver.
(d) The time for the board to determine the sufficiency,
timeliness, or any other aspect of the claim shall begin when any of
the following occur:
(1) The claim is submitted with the filing fee.
(2) The fee waiver is granted.
(3) The filing fee is paid to the board upon the board's denial of
the fee waiver request, so long as payment is received within 10
calendar days of the mailing of the notice of the denial.
(e) Upon approval of the claim by the board, the fee shall be
reimbursed to the claimant, except that no fee shall be reimbursed if
the approved claim was for the payment of an expired warrant.
Reimbursement of the filing fee shall be paid by the state entity
against which the approved claim was filed. If the claimant was
granted a fee waiver pursuant to this section, the amount of the fee
shall be paid by the state entity to the board. The reimbursement to
the claimant or the payment to the board shall be made at the time
the claim is paid by the state entity, or shall be added to the
amount appropriated for the claim in an equity claims bill.
(f) The board may assess a surcharge to the state entity against
which the approved claim was filed in an amount not to exceed 15
percent of the total approved claim. The board shall not include the
refunded filing fee in the surcharge calculation. This surcharge
shall be deposited into the General Fund and may be appropriated in
support of the board as reimbursements to Item 1870-001-0001 of
Section 2.00 of the annual Budget Act.
(1) The surcharge shall not apply to approved claims to reissue
expired warrants.
(2) Upon the request of the board in a form prescribed by the
Controller, the Controller shall transfer the surcharges and fees
from the state entity's appropriation to the appropriation for the
support of the board. However, the board shall not request an amount
that shall be submitted for legislative approval pursuant to Section
13928.
(g) The filing fee required by subdivision (c) shall apply to all
claims filed after June 30, 2004, or the effective date of this
statute. The surcharge authorized by subdivision (f) may be
calculated and included in claims paid after June 30, 2004, or the
effective date of the statute adding this subdivision.
(h) This section shall not apply to claims made for a violation of
the California Whistleblower Protection Act (Article 3 (commencing
with Section 8547) of Chapter 6.5 of Division 1 of Title 2).
SEC. 2. Section 8547.15 is added to the Government Code, to read:
8547.15. An action for damages pursuant to this article shall not
be subject to the claims presentation requirements of the Government
Claims Act (Division 3.6 (commencing with Section 810) of Title 1).
SEC. 3. Section 19683 of the Government Code is amended to read:
19683. (a) The State Personnel Board shall initiate an informal
hearing or investigation of a written complaint of reprisal
or retaliation as conduct prohibited by Section
8547.3 within 10 working days of its submission. The executive
officer shall complete findings of the informal hearing or
investigation within 60 working days thereafter, and shall provide a
copy of the findings to the complaining state employee or applicant
for state employment and to the appropriate supervisor, manager,
employee, or appointing authority. If the allegations contained
in the complaint are related to matters raised in one or more appeals
by the complainant to the State Personnel Board, the executive
officer may consolidate the complaint and the related appeal or
appeals for evidentiary hearing. The time limits described in this
subdivision shall not apply to cases that are consolidated by the
executive officer.
(b) The Except for complaints that are
consolidated with one or more appeals pursuant to subdivision (a),
the complainant is deemed to have exhausted his or
her administrative remedies and may file an independent civil
action for civil damages, pursuant to
Section 8547.8, after either 70 working days from
submitting the complaint to the State Personnel Board, or
sooner upon either of the following:
the issuance of findings by the executive officer, whichever is
sooner.
(1) The executive officer issues the findings of the informal
hearing or investigation, as set forth in subdivision (a).
(2) The executive officer consolidates the complainant's multiple
appeals pursuant to subdivision (e) and refers the consolidated
appeal directly to an evidentiary hearing.
(c) If, after the informal hearing or investigation ,
the executive officer finds that the supervisor, manager, employee,
or appointing power retaliated against the complainant for engaging
in protected whistleblower activities, the supervisor, manager,
employee, or appointing power may request an evidentiary hearing
before the State Personnel Board regarding the findings of the
executive officer. A complainant's filing of a civil action does not
preclude the request for an evidentiary hearing by the supervisor,
manager, employee, or appointing power under this subdivision, nor
does the request for hearing preclude the complainant's right to file
an independent civil action pursuant to subdivision (b). The request
for hearing and any subsequent determination by the board shall be
made in accordance with the board's normal rules governing appeals,
hearings, investigations, and disciplinary proceedings.
(d) The executive officer's findings of the informal hearing or
investigation, as set forth in subdivision (a), are not binding
or entitled to deference in either a subsequent State
Personnel Board evidentiary hearing requested by the
complainant or pursuant to subdivision (c) or (e), nor in
or a subsequent or concurrent civil action for
damages , pursuant to subdivision (b) .
(e) If the allegations contained in a complaint of reprisal or
retaliation are the same as, or similar to, those contained in
another appeal to the State Personnel Board by the complainant as
authorized by another law or under a separate cause of action, the
executive officer may consolidate the appeals into the most
appropriate format. In these cases, the time limits described in
subdivision (a) shall not apply.
(f)
( e) After an evidentiary hearing
requested by the complainant or on a complaint
pursuant to subdivision (c) or (e) the State
Personnel Board shall issue a decision. Any aggrieved party to the
decision may file a petition for writ of mandate with the superior
court for review of the decision pursuant to Section 1094.5 of the
Code of Civil Procedure. This subdivision shall not apply to
preclude a claimant's right to pursue an
independent civil action for civil
damages pursuant to subdivision (b). A decision by the State
Personnel Board shall not be binding in any concurrent or subsequent
independent civil action pursuant to subdivision (b) .
(g)
( f) If, after the evidentiary hearing, the
State Personnel Board determines that a violation of Section 8547.3
occurred, or if no evidentiary hearing is requested and the findings
of the executive officer conclude that the complainant was
retaliated against, a violation of Section 8547.3
occurred, the board may order any appropriate relief,
including, but not limited to, reinstatement, backpay, restoration of
lost service credit, compensatory damages, and the expungement of
any adverse records of the state employee or applicant for state
employment who was the subject of the alleged acts of misconduct
prohibited by Section 8547.3.
(h)
( g) Whenever the board determines that a
manager, supervisor, or employee, who is named a party to the
retaliation complaint, has violated Section 8547.3 and that violation
constitutes legal cause for discipline under one or more
subdivisions of Section 19572, it shall impose a just and proper
penalty and cause an entry to that effect to be made in the manager'
s, supervisor's, or employee's official personnel records.
(i)
( h) Whenever the board determines that a
manager, supervisor, or employee, who is not named a party to the
retaliation complaint, may have engaged in or participated in any act
prohibited by Section 8547.3, the board shall notify the manager's,
supervisor's, or employee's appointing power of that fact in writing.
Within 60 days after receiving the notification, the appointing
power shall either serve a notice of adverse action on the manager,
supervisor, or employee, or set forth in writing its reasons for not
taking adverse action against the manager, supervisor, or employee.
The appointing power shall file a copy of the notice of adverse
action with the board in accordance with Section 19574. If the
appointing power declines to take adverse action against the manager,
supervisor, or employee, it shall submit its written reasons for not
doing so to the board, which may take adverse action against the
manager, supervisor, or employee as provided in Section 19583.5. A
manager, supervisor, or employee who is served with a notice of
adverse action pursuant to this section may file an appeal with the
board in accordance with Section 19575.
(j)
( i) In order for the Governor and the
Legislature to determine the need to continue or modify state
personnel procedures as they relate to the investigations of
reprisals or retaliation for the disclosure of information by public
employees, the State Personnel Board, by June 30 of each year, shall
submit a report to the Governor and the Legislature regarding
complaints filed, hearings held, and legal actions taken pursuant to
this section.
SEC. 4. Section 1102.5 of the Labor Code is amended to read:
1102.5. (a) An employer shall not make, adopt, or enforce any
rule, regulation, or policy preventing an employee from disclosing
information to a government or law enforcement agency, or to a
person with authority over the employee or to another employee who
has authority to investigate, discover, or correct the violation or
noncompliance, if the employee has reasonable cause to believe
that the information discloses a violation of state or federal
statute, or a violation of or noncompliance with a local, state, or
federal rule or regulation , regardless of whether
disclosing the information is part of the employee's job duties
.
(b) An employer shall not retaliate against an employee for
disclosing information, or because the employer perceives
believes that the employee disclosed or
may disclose information, to a government or law enforcement
agency, or to a person with authority over the employee or another
employee who has the authority to investigate, discover, or correct
the violation or noncompliance , if the employee has
reasonable cause to believe that the information discloses a
violation of state or federal statute, or a violation of or
noncompliance with a local, state, or federal rule or regulation
, regardless of whether disclosing the information is part of the
employee's job duties .
(c) An employer shall not retaliate against an employee for
refusing to participate in an activity that would result in a
violation of state or federal statute, or a violation of or
noncompliance with a local, state, or federal rule or regulation.
(d) An employer shall not retaliate against an employee for having
exercised his or her rights under subdivision (a), (b), or (c) in
any former employment.
(e) A report made by an employee of a government agency to his or
her employer is a disclosure of information to a government or law
enforcement agency pursuant to subdivisions (a) and (b).
(f) In addition to other penalties, an employer that is a
corporation or limited liability company is liable for a civil
penalty not exceeding ten thousand dollars ($10,000) for each
violation of this section.
(g) This section does not apply to rules, regulations, or policies
that implement, or to actions by employers against employees who
violate, the confidentiality of the lawyer-client privilege of
Article 3 (commencing with Section 950), the physician-patient
privilege of Article 6 (commencing with Section 990) of Chapter 4 of
Division 8 of the Evidence Code, or trade secret information.
SEC. 5. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.