Bill Text: CA AB3265 | 2019-2020 | Regular Session | Amended
Bill Title: Whistleblowers: California State Auditor: State Personnel Board.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2020-05-05 - Re-referred to Com. on JUD. [AB3265 Detail]
Download: California-2019-AB3265-Amended.html
|
Amended
IN
Assembly
May 04, 2020 |
CALIFORNIA LEGISLATURE—
2019–2020 REGULAR SESSION
Assembly Bill
No. 3265
| Introduced by Assembly Member McCarty |
February 21, 2020 |
An act to amend Section 8547.1 Sections 8547.4, 8547.5, 8547.7, 8547.8, 8547.10, 8547.12, 8547.13, 19175, 19575, 19585, 19683, and 19683.5 of the Government Code, relating to whistleblower protection.
LEGISLATIVE COUNSEL'S DIGEST
AB 3265, as amended, McCarty.
Whistleblower protection. Whistleblowers: California State Auditor: State Personnel Board.
Existing law creates the California State Auditor’s Office, which is independent of the executive branch and legislative control, to examine and report annually upon the financial statements prepared by the executive branch. Other existing law, the California Whistleblower Protection Act, authorizes the California State Auditor to conduct an investigative audit upon receiving specific information that an employee or state agency has engaged in an improper governmental activity, as defined. The act requires the auditor to administer its provisions and to investigate and report on improper governmental activities. The act requires the auditor, if, after investigating, the auditor finds that an employee may have engaged or participated in improper governmental activities, to prepare an investigative report and send a copy of the investigative
report to the employee’s appointing power. The act prohibits an employee from directly or indirectly using or attempting to use the official authority or influence of the employee for the purpose of intimidating, threatening, coercing, commanding, or attempting to intimidate, threaten, coerce, or command any person for the purpose of interfering with the rights conferred pursuant to the act.
This bill would specify that the improper activities to be investigated and reported on include actual or attempted acts of reprisal, retaliation, threats, coercion, or similar improper acts as prohibited by the act.
The act requires the auditor to create the means for the submission of allegations of improper governmental activity, as prescribed, and authorizes the auditor, upon receiving specific information that any employee or state agency has engaged in an improper governmental activity, to conduct an investigation of the matter.
This bill would require the auditor to provide a dated notice of receipt of submission to the person submitting an allegation of improper governmental activity.
The act requires the auditor, if, after investigating an allegation, the auditor finds that a state agency or employee may have engaged or participated in an improper governmental activity, to prepare an investigative report and send a copy of that report to the head of the agency involved and to the head of any other agency that has direct oversight over that involved agency. Under the act, the auditor does not have any enforcement power with regard to such a violation.
This bill would require the auditor, upon request, to also notify the employee providing the information that initiated the investigation that an investigative report has been issued. The bill would require the auditor, if the auditor finds that a state agency or employee may have engaged in actual or attempted acts of reprisal, retaliation,
threats, coercion, or similar improper acts as prohibited by the act, to send a copy of those findings to the State Personnel Board. The bill would require, in any civil action or administrative proceeding for such a violation, that the investigative report and findings be made available to the complainant, as specified.
The act authorizes a state employee or applicant for state employment who files a written complaint with the employee or applicant’s supervisor, manager, or the appointing power alleging actual or attempted acts of reprisal, retaliation, threats, coercion, or similar prohibited improper acts, to also file a copy of the written complaint in a prescribed manner with the board, together with a sworn statement that the contents of the written complaint are true, or are believed by the affiant to be true, under penalty of perjury. Under the act, a 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 protected disclosure, is subject to a fine not to exceed $10,000 and imprisonment in the county jail as prescribed. The act provides for additional relief, including an action for damages by the injured party, and provides for punitive damages and reasonable attorney’s fees. Under these provisions, any action for damages is not available to the injured party unless the injured party has first filed a complaint with the board and the board has issued, or failed to issue, specified findings.
This bill would also authorize the filing of such a complaint with the auditor. By expanding the crime of perjury, this bill would imposed a state-mandated local program. The bill would subject a person who violates that protected disclosure provision to a penalty of $25,000 and imprisonment. The bill would also entitle an injured party, where liability has been established, to specified costs. The bill, with respect to an action by the injured party, would
authorize a court to order specified appropriate relief. Under the bill, it would not be a prerequisite for an action for damages for the injured party to first file a complaint with the board. The bill would authorize an employee, in any civil action or administrative proceeding brought pursuant to these provisions, to petition the board or the superior court in any county wherein the violation in question is alleged to have occurred, or wherein the person resides or transacts business, for appropriate temporary or preliminary injunctive relief. The bill would grant the board or court jurisdiction to grant temporary injunctive relief, as prescribed.
The act contains complaint provisions specific to the University of California (UC) and the California State University (CSU). Those university provisions make certain persons who intentionally engage in acts of reprisal, retaliation, threats, coercion, or similar acts against a UC or CSU employee for having made a protected disclosure, subject to a fine
not to exceed $10,000 and imprisonment in the county jail, as prescribed. Under those provisions, where liability has been established, the injured party is entitled to reasonable attorney’s fees. Additionally, under those provisions, an action for damages is not available until a complaint has been filed with the university and the university has failed to reach a decision within specified time limits.
This bill would instead impose a penalty of $25,000 and imprisonment. The bill would specify that an injured party’s reasonable attorney’s fees include fees and costs for any actions or proceedings before the State Personnel Board. The bill would authorize a court, if liability is established, to order any appropriate relief, including, but not limited to, reinstatement, backpay, restoration of lost service credit, if appropriate, compensatory damages, and the expungement of any adverse records of the employee or applicant for employment who was the subject of the alleged acts of
misconduct prohibited by the act. Under the bill, it would not be a prerequisite for an action for damages for the injured party to first file a complaint with the university.
The act contains complaint provisions specific to certain courts. Those provisions, except as specified, make a person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against an employee or applicant for employment for having made a protected disclosure, subject to a fine not to exceed $10,000 and imprisonment in the county jail, as prescribed. Under the court provisions, where liability has been established, the injured party is entitled to reasonable attorney’s fees.
This bill would instead impose a penalty of $25,000 and imprisonment. The bill would authorize a court, if liability is established, to order any appropriate relief, including, but not limited to, reinstatement, backpay, restoration of lost service credit, if
appropriate, compensatory damages, and the expungement of any adverse records of the employee or applicant for employment who was the subject of the alleged acts of misconduct prohibited by the act.
Existing law authorizes the board to initiate a hearing or investigation of a written complaint of prohibited conduct within 10 working days of its submission. If 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 a hearing before the board regarding the findings of the executive officer. If, after the hearing, the board determines that a violation occurred, or if no hearing is requested and the findings of the executive officer conclude that improper activity has occurred, the board is authorized to order any appropriate relief. Existing law requires, if a state employee is successful in an action brought pursuant to
these provisions, that the complaining employee be reimbursed for specified costs.
This bill would specify that appropriate relief may include reasonable attorney’s fees and costs for successful prosecution of a retaliation complaint before the board. The bill would also require the reimbursement of reasonable attorney’s fees for a successful action by a complaining employee.
Existing law relating to state civil service disciplinary proceedings provides an employee 30 calendar days after the effective date of an adverse action to file with the board a written answer to the notice of adverse action, as prescribed.
This bill would additionally authorize an employee to file a complaint pursuant to the act within that period.
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.
The California Whistleblower Protection Act requires the California State Auditor to administer its provisions and to investigate and report on improper governmental activities. The act authorizes the auditor to conduct an investigative audit upon receiving specific information that an employee or state agency has engaged in an improper governmental activity, as defined. The act finds and declares that state employees should be free to report waste, fraud, abuse of authority, violation of law, or threat to public health without fear of retribution and that public servants best serve the citizenry when they can be candid and honest without reservation in conducting the people’s business.
This bill would make technical, nonsubstantive changes to those findings and declarations.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee:Bill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 8547.4 of the Government Code is amended to read:8547.4.
The State Auditor shall administer this article and shall investigate and report on improper governmentalSEC. 2.
Section 8547.5 of the Government Code is amended to read:8547.5.
(a) The California State Auditor shall create the means for the submission of allegations of improper governmental activity both by transmission via mail or other carrier to a specified mailing address and electronic submission through an(b) Upon receiving specific information that any employee or state agency has engaged in an improper governmental activity, the California State Auditor may conduct an investigation of the matter. The identity of the person providing the information that initiated the investigation, or of any person providing information in confidence to further an investigation, shall not be disclosed without the express permission of the person providing the information except that the California State Auditor may make the disclosure to a law enforcement agency that is conducting a criminal investigation.
(c) (1) The California State Auditor shall create an alternative system for submission to an independent investigator of allegations of improper governmental activity engaged or participated in by employees of the California State Auditor’s Office. The system shall allow for
submission of allegations both by delivery to a specified mailing address and electronic submission through an Internet Web site internet website portal. The system may request that people submitting allegations provide their name and contact information and the names and contact information for any persons who could help to substantiate the claim. However, the system shall not require people submitting an allegation to provide their name or contact information and shall clearly state that this information is not required to submit an allegation. The system shall ensure that all submissions are promptly and directly delivered to the Employment and Administrative Mandate Section of the Department of Justice without prior review by the California State Auditor. The Employment and Administrative Mandate Section of the
Department of Justice shall review submissions. If the Employment and Administrative Mandate Section of the Department of Justice determines that a submission constitutes an allegation of improper governmental activity, it shall transmit the submission to the independent investigator for further action in accordance with this section.
(2) (A) The independent investigator shall conduct investigations in a manner consistent with the provisions of this article relating to other state civil service employees. If the independent investigator finds that the facts support a conclusion that an employee engaged or participated in improper governmental activities, the investigator shall prepare a confidential investigative report and, subject to the limitations of this section, send a copy of the report and all evidence gathered during the investigation to the California State Auditor, the Chief Deputy California State Auditor, and
the California State Auditor’s Office chief counsel and human resource manager.
(B) If the independent investigator determines it to be appropriate, the independent investigator shall report this information to the Attorney General, to the policy committees of the Senate and Assembly having jurisdiction over the subject involved, and to any other authority that the independent investigator determines appropriate. Subject to the limitations of this section, the independent investigator may provide to the California State Auditor any evidence gathered during the investigation that, in the judgment of the independent investigator, is necessary to support any of the report’s recommendations. Within 60 days of receiving the independent investigator’s report, the California State Auditor shall report to the independent investigator any actions that it has taken or that it intends to take to implement the recommendations. The California State Auditor
shall file subsequent reports on a monthly basis until final action has been taken.
(3) (A) Within 60 days after receiving a copy of the independent investigator’s report, the California State Auditor’s Office shall either serve a notice of adverse action upon the employee who is the subject of the investigative report, or submit to the independent investigator in writing its reasons for not taking adverse action.
(B) If the California State Auditor’s Office elects not to serve a notice of adverse action upon the employee who is the subject of the investigative report, then, within 10 days of receiving the reasons provided by the California State Auditor’s Office pursuant to subparagraph (A), the independent investigator shall:
(i) Notify the Joint Legislative Audit Committee, as described in
Section 10501, that it has provided a report to the California State Auditor’s Office pursuant to this paragraph.
(ii) Upon request, provide a copy of the report described in this paragraph, redacted to remove all information that could identify any reporting party, witness, or employee, to the Joint Legislative Audit Committee, as described in Section 10501.
(C) If the California State Auditor’s Office does not take adverse action, the independent investigator may seek consent from the State Personnel Board to file charges in accordance with Section 19583.5.
(D) The following shall not be confidential:
(i) A notice of adverse action served by the California State Auditor.
(ii) A request
to file charges filed by the independent investigator with the State Personnel Board.
(4) The California State Auditor’s Office shall reimburse the Employment and Administrative Mandate Section of the Department of Justice for the costs of retaining the independent investigator.
(5) For purposes of this subdivision and any investigation conducted pursuant thereto, “improper governmental activity” has the same meaning as set forth in subdivision (c) of Section 8547.2, except that it shall not include violations of an executive order of the Governor, any policy or procedure mandated by the State Administrative Manual or State Contracting Manual, or any other rule, regulation, or requirement that the California State Auditor’s Office, because of its independence from executive branch and legislative control, is not required to follow.
(d) For purposes of this section, “independent investigator” means an investigator who is retained by the Employment and Administrative Mandate Section of the Department of Justice who is all of the following:
(1) An attorney who is licensed to practice law in this state or a certified fraud examiner.
(2) A person who is experienced in investigating allegations of improper governmental activity in a confidential manner.
(3) A person who is outside of, and independent from, the California State Auditor’s Office and also independent of the executive branch and legislative control.
SEC. 3.
Section 8547.7 of the Government Code is amended to read:8547.7.
(a) If, after investigating an allegation, the State Auditor finds that a state agency or employee may have engaged or participated in an improper governmental activity,(b) The State Auditor shall not have any enforcement power. In any case in which the State Auditor finds that a state agency or employee may have engaged in an improper governmental activity, the State Auditor may provide the finding, and any evidence supporting the finding, subject to the limitations of Section 8547.5, to a criminal law enforcement agency, an administrative law enforcement agency, or a licensing agency that has authority to investigate the
matter.
(c) The State Auditor shall keep confidential every investigation, including, but not limited to, all investigative files and work product, except that the State Auditor, whenever he or she the State Auditor determines it necessary to serve the interests of the state, and subject to the limitations of Section 8547.5, may issue a public report of an investigation that has substantiated an improper governmental activity, keeping confidential the identity of the employee or employees involved. In addition, subject to the limitations of Section 8547.5, the State Auditor may release any findings or evidence supporting any findings resulting from an investigation conducted pursuant to this article whenever the State Auditor determines it necessary to
serve the interests of the state.
(d) This section does not limit any authority conferred upon the Attorney General or any other department or agency of government to investigate any matter.
SEC. 4.
Section 8547.8 of the Government Code is amended to read:8547.8.
(a) A state employee or applicant for state employment who files a written complaint with(b) 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 protected disclosure, is subject to a fine not to exceed ten thousand dollars ($10,000) penalty of twenty-five
thousand dollars ($25,000) and imprisonment in the county jail for a period not to exceed one year. Pursuant to Section 19683, any state civil service employee who intentionally engages in that conduct shall be disciplined by adverse action as provided by Section 19572.
(c) In addition to all other penalties provided by law, 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 protected disclosure shall be liable in an action for damages brought against him or her that person by the injured party. Punitive damages may be awarded by the court where the acts of the offending party are proven to be
malicious. Where liability has been established, the injured party shall also be entitled to reasonable attorney’s fees and costs
as provided by law. However, any action for damages shall not be available to the injured party unless the injured party has first filed a complaint with the State Personnel Board pursuant to subdivision (a), and the board has issued, or failed to issue, findings pursuant to Section 19683.
law, including fees and costs for any actions or proceedings before the State Personnel Board. The court may order any appropriate relief, including, but not limited to, reinstatement, backpay, restoration of lost service credit, if appropriate, 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. It is not a prerequisite for an action for damages for the injured party to first file a complaint pursuant to subdivision (a) or exhaust any internal complaint or grievance process.
(d) Whenever the court determines that a manager, supervisor, or employee has violated Section 8547.3, it shall order the State Personnel Board to take appropriate action pursuant to subdivision (d)
or (e) of Section 19683.
(e) (1) In any civil action or administrative proceeding brought pursuant to this section, an employee may petition the State Personnel Board or the superior court in any county wherein the violation in question is alleged to have occurred, or wherein the person resides or is employed, for appropriate temporary or preliminary injunctive relief as set forth in this subdivision.
(2) Upon the filing of the petition for injunctive relief, the petitioner shall cause notice thereof to be served upon the person, and thereupon the State Personnel Board or court shall have jurisdiction to grant such temporary injunctive relief as determined to be just and proper.
(3) In addition to any harm resulting directly from the violation of this section, the State Personnel Board or court
shall consider the chilling effect on other employees asserting their rights under this article in determining whether temporary injunctive relief is just and proper.
(4) Appropriate injunctive relief shall be issued by the State Personnel Board or court on a showing that reasonable cause exists to believe a violation has occurred. There shall be a rebuttable presumption that reasonable cause exists when an adverse action has been taken against the employee while an investigation is open for alleged improper government activities based on the employee’s report.
(5) The order authorizing temporary injunctive relief shall remain in effect until the State Personnel Board or a court issues a determination on the merits for a violation of Section 8547.3 or at a time certain set by the court. Thereafter, a preliminary or permanent injunction may be issued if it is shown to be just and
proper. Any temporary injunctive relief shall not prohibit an employer from disciplining or terminating an employee for conduct that is unrelated to the claim of retaliation under Section 8547.3.
(6) Notwithstanding Section 916 of the Code of Civil Procedure, injunctive relief granted pursuant to this section shall not be stayed pending appeal.
(d)
(f) This section is not intended to prevent an appointing power, manager, or supervisor from taking, directing others to take, recommending, or approving any personnel action or from taking or failing to take a personnel action with respect
to any state employee or applicant for state employment if the appointing power, manager, or supervisor reasonably believes any action or inaction is justified on the basis of evidence separate and apart from the fact that the person has made a protected disclosure as defined in subdivision (b) of Section 8547.2.
(e)
(g) In any civil action or administrative proceeding, once it has been demonstrated by a preponderance of evidence that an activity protected by this article was a contributing factor in the alleged retaliation against a former, current, or prospective employee, the burden of proof shall be on the supervisor, manager, or appointing power to demonstrate by clear
and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in protected disclosures or refused an illegal order. If the supervisor, manager, or appointing power fails to meet this burden of proof in an adverse action against the employee in any administrative review, challenge, or adjudication in which retaliation has been demonstrated to be a contributing factor, the employee shall have a complete affirmative defense in the adverse action.
(f)
(h) Nothing in this article shall be deemed to diminish the rights, privileges, or remedies of any employee under any other federal or state law or
under any employment contract or collective bargaining agreement.
(i) Prosecution of a whistleblower retaliation complaint filed with the State Personnel Board is not conditioned upon maintenance of a rejection during probation, adverse action, or nonpunitive termination appeal at the State Personnel Board. The notice of rejection during probationary period, notice of adverse action, or notice of nonpunitive termination may be challenged via the whistleblower retaliation complaint process.
SEC. 5.
Section 8547.10 of the Government Code is amended to read:8547.10.
(a) A University of California employee, including an officer or faculty member, or applicant for employment may file a written complaint with(b) Any person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a University of California employee, including an officer or faculty member, or applicant for employment for having made a protected disclosure, is subject to a fine not to exceed ten thousand dollars ($10,000) penalty of twenty-five thousand dollars ($25,000) and imprisonment in the county jail for up to a period of one year. Any university employee, including an officer or faculty member, who intentionally engages in that conduct shall also be subject to discipline by the university.
(c) In addition to all other penalties provided by law, any person who
intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a university employee, including an officer or faculty member, or applicant for employment for having made a protected disclosure shall be liable in an action for damages brought against him or her that person by the injured party. Punitive damages may be awarded by the court where the acts of the offending party are proven to be malicious. Where liability has been established, the injured party shall also be entitled to reasonable attorney’s fees as provided by law. However, any action for damages shall not be available to the injured party unless the injured party has first filed a complaint with the university officer identified pursuant to subdivision (a), and the university has failed to reach a decision regarding that complaint within the time
limits established for that purpose by the regents. Nothing in this section is intended to prohibit the injured party from seeking a remedy if the university has not satisfactorily addressed the complaint within 18 months. law, including fees and costs for any actions or proceedings before the State Personnel Board. The court may order any appropriate relief, including, but not limited to, reinstatement, backpay, restoration of lost service credit, if appropriate, compensatory damages, and the expungement of any adverse records of the employee or applicant for employment who was the subject of the alleged acts of misconduct prohibited by Section 8547.3. It is not a prerequisite for an action for damages for the injured party to first file a complaint pursuant to subdivision (a) or exhaust any internal complaint or grievance process.
(d) This section is not intended to prevent a manager or supervisor from taking, directing others to take, recommending, or approving any personnel action or from taking or failing to take a personnel action with respect to any university employee, including an officer or faculty member, or applicant for employment if the manager or supervisor reasonably believes any action or inaction is justified on the basis of evidence separate and apart from the fact that the person has made a protected disclosure.
(e) In any civil action or administrative proceeding, once it has been demonstrated by a preponderance of the evidence that an activity protected by this article was a contributing factor in the alleged retaliation against a former, current, or prospective employee, the burden of proof shall be on the supervisor, manager, or appointing power to demonstrate by clear and convincing evidence that the alleged action would have occurred
for legitimate, independent reasons even if the employee had not engaged in protected disclosures or refused an illegal order. If the supervisor, manager, or appointing power fails to meet this burden of proof in an adverse action against the employee in any administrative review, challenge, or adjudication in which retaliation has been demonstrated to be a contributing factor, the employee shall have a complete affirmative defense in the adverse action.
(f) Nothing in this article shall be deemed to diminish the rights, privileges, or remedies of any employee under any other federal or state law or under any employment contract or collective bargaining agreement.
SEC. 6.
Section 8547.12 of the Government Code is amended to read:8547.12.
(a) A California State University employee, including an officer or faculty member, or applicant for employment may file a written complaint with(b) Any person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a California State University employee, including an officer or faculty member, or applicant for employment for having made a protected disclosure, is subject to a fine not to exceed ten thousand dollars ($10,000) penalty of twenty-five thousand dollars ($25,000) and imprisonment in the county jail for up to a period of one year. Any university employee, including an officer or faculty member, who intentionally engages in that conduct shall also be subject to discipline by the university.
(c) In addition to all
other penalties provided by law, any person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a university employee, including an officer or faculty member, or applicant for employment for having made a protected disclosure shall be liable in an action for damages brought against him or her that person by the injured party. Punitive damages may be awarded by the court where the acts of the offending party are proven to be malicious. Where liability has been established, the injured party shall also be entitled to reasonable attorney’s fees as provided by law. However, any action for damages shall not be available to the injured party unless the injured party has first filed a complaint with the university officer identified pursuant to subdivision (a), and the university has failed to reach a decision regarding that complaint within the time limits established for that purpose by the trustees. Nothing in this section is intended to prohibit the injured party from seeking a remedy if the university has not satisfactorily addressed the complaint within 18 months.
law, including fees and costs for any actions or proceedings before the State Personnel Board. The court may order any appropriate relief, including, but not limited to, reinstatement, backpay, restoration of lost service credit, if appropriate, compensatory damages, and the expungement of any adverse records of the employee or applicant for employment who was the subject of the alleged acts of misconduct prohibited by Section 8547.3. It is not a prerequisite for an action for damages for the injured party to first file a complaint pursuant to subdivision (a) or exhaust any internal complaint or grievance process.
(d) This section is not intended to prevent a manager or supervisor from taking, directing others to take, recommending, or approving any personnel action, or from taking or failing to take a personnel action with respect to any university employee, including an officer or faculty member, or
applicant for employment if the manager or supervisor reasonably believes any action or inaction is justified on the basis of evidence separate and apart from the fact that the person has made a protected disclosure.
(e) In any civil action or administrative proceeding, once it has been demonstrated by a preponderance of the evidence that an activity protected by this article was a contributing factor in the alleged retaliation against a former, current, or prospective employee, the burden of proof shall be on the supervisor, manager, or appointing power to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in protected disclosures or refused an illegal order. If the supervisor, manager, or appointing power fails to meet this burden of proof in an adverse action against the employee in any administrative review, challenge, or
adjudication in which retaliation has been demonstrated to be a contributing factor, the employee shall have a complete affirmative defense in the adverse action.
(f) Nothing in this article shall be deemed to diminish the rights, privileges, or remedies of any employee under any other federal or state law or under any employment contract or collective bargaining agreement.
(g) If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Chapter 12 (commencing with Section 3560) of Division 4 of Title 1, the memorandum of understanding shall be controlling without further legislative action.
SEC. 7.
Section 8547.13 of the Government Code is amended to read:8547.13.
(a) As used in this section:(1) “Agency” means the Supreme Court, the courts of appeal, the superior courts, or the Administrative Office of the Courts.
(2) “Employee” means a person employed by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts.
(b) An employee or applicant for employment who files a written complaint with his or her their supervisor, manager, or any other agency officer
designated for that purpose by the agency, alleging actual or attempted acts of reprisal, retaliation, threats, coercion, or similar improper acts prohibited by Section 8547.3, may also file a copy of the written complaint with the State Personnel Board, together with a sworn statement that the contents of the written complaint are true, or are believed by the affiant to be true, under penalty of perjury. The complaint shall be filed within 12 months of the most recent act complained about.
(c) The State Personnel Board shall investigate any complaint filed, in accordance with the procedures of this chapter, and make a recommendation to the hiring entity of the agency of the employee or applicant regarding whether retaliation resulted in an adverse action regarding the employee and, if so, what steps should be taken to remedy the situation.
(d) Except to the extent that justices
and judges subject to the jurisdiction of the Commission on Judicial Performance are immune from liability under the doctrine of judicial immunity, a person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against an employee or applicant for employment for having made a protected disclosure, is subject to a fine not to exceed ten thousand dollars ($10,000)
penalty of twenty-five thousand dollars ($25,000) and imprisonment in a county jail for up to one year. An employee who intentionally engages in that conduct also shall be subject to discipline by the agency. This subdivision does not limit any other sanction that may be applicable by law.
(e) In addition to all other penalties provided by law, except to the extent that justices and judges subject to the jurisdiction of the Commission on Judicial Performance are immune from liability under the doctrine of judicial immunity, a person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against an employee or applicant for employment for having made a protected disclosure shall be liable in an action for damages brought against him or her
that person by the injured party. Punitive damages may be awarded by the court if the acts of the offending party are proven to be malicious. If liability is established, the injured party also shall be entitled to reasonable attorney’s fees as provided by law. law, including fees and costs for any actions or proceedings before the State Personnel Board. The court may order any appropriate relief, including, but not limited to, reinstatement, backpay, restoration of lost service credit, if appropriate, compensatory damages, and the expungement of any adverse records of the employee or applicant for employment who was the subject of the alleged acts of misconduct prohibited by Section 8547.3. It is not a prerequisite for an action for damages for the injured party to first file
a complaint pursuant to subdivision (b). (b) or exhaust any internal complaint or grievance process.
(f) This section is not intended to prevent a manager or supervisor from taking, directing others to take, recommending, or approving any personnel action, or from taking or failing to take a personnel action with respect to an employee or applicant for employment, if the manager or supervisor reasonably believes any action or inaction is justified on the basis of evidence separate and apart from the fact that the person has made a protected disclosure.
(g) In a civil action or administrative proceeding, once it has been demonstrated by a preponderance of the evidence that an activity
protected by this article was a contributing factor in the alleged retaliation against a former, current, or prospective employee, the burden of proof shall be on the supervisor, manager, or appointing power to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in protected disclosures or refused an illegal order. If the supervisor, manager, or appointing power fails to meet this burden of proof against the employee in an administrative review, challenge, or adjudication in which retaliation has been demonstrated to be a contributing factor, the employee shall have a complete affirmative defense on the issue of retaliation.
(h) Nothing in this article shall be deemed to diminish the rights, privileges, or remedies of an employee under any other federal or state law or under any employment contract or collective bargaining
agreement.
(i) An employee shall not directly or indirectly use or attempt to use the official authority or influence of the employee for the purpose of intimidating, threatening, coercing, commanding, or attempting to intimidate, threaten, coerce, or command a person for the purpose of interfering with the right of that person to disclose to an agency official, designated for that purpose by the agency, or the State Auditor matters within the scope of this article. For the purpose of this subdivision, “use of official authority or influence” includes all of the following:
(1) Promising to confer, or conferring, any benefit.
(2) Effecting, or threatening to effect, any reprisal.
(3) Taking or directing others to take, or recommending, processing, or
approving, any personnel action, including, but not limited to, appointment, promotion, transfer, assignment, performance evaluation, suspension, or other disciplinary action.
(j) Except to the extent that justices and judges subject to the jurisdiction of the Commission on Judicial Performance are immune from liability under the doctrine of judicial immunity, an employee who violates subdivision (i) is subject to an action for civil damages brought against the employee by the injured party.
(k) Nothing in this section shall be construed to authorize an individual to disclose any information, the disclosure of which is otherwise prohibited by law.
SEC. 8.
Section 19175 of the Government Code is amended to read:19175.
(a) The board at the written request of a rejected probationer, filed within 15 calendar days of the effective date of rejection, may investigate with or without a hearing the reasons for rejection. After investigation, the board may do any of the following:(a)
(1) Affirm the action of the appointing power.
(b)
(2) Modify the action of the appointing power.
(c)
(3) Restore the name of the rejected probationer to the employment list for certification to any position within the class; provided, that his or her their name shall not be certified to the agency by which he or she was
they were rejected, except with the concurrence of the appointing power of that agency.
(d)
(4) Restore him or her them to the position from which he or she was they were rejected, but this shall be done only if the board determines, after a hearing, that
there is no substantial evidence to support the reason or reasons for rejection, or that the rejection was made in fraud or bad faith. At the hearing, the rejected probationer shall have the burden of proof. Subject to rebuttal by the rejected probationer, it shall be presumed that the rejection was free from fraud and bad faith and that the statement of reasons therefor in the notice of rejection is true.
(b) Nothing in this section prohibits the board from taking the authorized actions in the course of whistleblower retaliation complaint proceedings pursuant to the California Whistleblower Protection Act (Article 3 (commencing with Section 8547) of Chapter 6.5 of Division 1).
SEC. 9.
Section 19575 of the Government Code is amended to read:19575.
The employee has 30 calendar days after the effective date of the adverse action to file with the board a written answer to the notice of adverseSEC. 10.
Section 19585 of the Government Code is amended to read:19585.
(a) This section shall apply to permanent and probationary employees and may be used in lieu of adverse action and rejection during probation when the only cause for action against an employee is(b) An appointing power may terminate, demote, or transfer an employee who fails to meet
the requirement for continuing employment that is prescribed by the board on or after January 1, 1986, in the specification for the classification to which the employee is appointed. Notwithstanding the foregoing, as prescribed by Article 11 (commencing with Section 19991) of Chapter 1 of Part 2.6, the appointing power may grant the employee a leave of absence in lieu of one of the actions specified above. In prescribing requirements for continuing employment, the board may specify standards to ensure that the requirements are consistently applied. The board may also specify when separation from a position for failure to meet requirements for continuing employment also constitutes separation from former positions that the employee held in other classifications that have the same or greater requirements for continuing employment.
(c) The federal Immigration Reform and Control Act of 1986 requires termination of an employee for failure to meet
the employment eligibility requirements of that act, and if this is the only cause for action against that employee, the termination shall be carried out pursuant to this section. If a person fails to meet the employment eligibility requirements of the federal Immigration Reform and Control Act of 1986, that information, when used under this section, except for purposes of the appeals process, shall be confidential, as provided in the federal Immigration Reform and Control Act of 1986.
(d) For the purposes of this section, requirements for continuing employment shall be limited to the acquisition or retention of specified licenses, certificates, registrations, or other professional qualifications, education, or eligibility for continuing employment or advancement to the fully qualified level within a particular class series. The board shall prescribe procedures to ensure that employees affected by the requirements are informed of them.
Requirements for continuing employment that are established for the purposes of this section shall not include medical, physical ability, work, or academy performance standards.
(e) For the purposes of this section, an employee who has filed a proper and timely application for renewal of a required license, registration, or certificate shall be considered as having maintained the license, registration, or certificate unless it is subsequently denied, revoked, or suspended.
(f) The employee shall receive at least five days’ written notice of termination, demotion, or transfer and shall have the right to appeal the action to the board.
(g) When the requirements for continuing employment have been regained, terminated, demoted, or transferred employees may be reinstated pursuant to Section 19140.
(h) Any action under this section shall be considered nondisciplinary for the purposes of the State Civil Service Act and board rules.
(i) Whenever the board revokes or modifies a termination, demotion, or transfer under this section, the board shall direct the payment of salary and benefits to the employee calculated on the same basis and using the same standards as provided in Section 19584.
(j) Nothing in this section prohibits the board from taking the authorized actions in the course of whistleblower retaliation complaint proceedings pursuant to the California Whistleblower Protection Act (Article 3 (commencing with Section 8547) of Chapter 6.5 of Division 1).
SEC. 11.
Section 19683 of the Government Code is amended to read:19683.
(a) The State Personnel Board shall initiate a hearing or investigation of a written complaint of conduct prohibited by Section 8547.3 within 10 working days of its submission. The executive officer shall complete findings of the 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. When the allegations contained in a complaint of reprisal or retaliation are the same as, or similar to, those contained in another appeal, the executive officer may consolidate the appeals into the most appropriate format. In these cases, the time limits described in this subdivision shall not apply. The board shall render its decision on the consolidated matter within a reasonable time after the conclusion of the hearing or investigation, except that the period shall not exceed six months from the date of the order of consolidation unless extended by the board for a period of not more than 45 additional days from the expiration of the six-month period.(b) If 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 a hearing before the State Personnel Board regarding the findings of the executive officer. 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.
(c) If, after the hearing, the State
Personnel Board determines that a violation of Section 8547.3 occurred, or if no hearing is requested and the findings of the executive officer conclude that improper activity has occurred, the board may order any appropriate relief, including, but not limited to, reasonable attorney’s fees and costs for successful prosecution of a retaliation complaint before the State Personnel Board, reinstatement, backpay, restoration of lost service credit, if appropriate, 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.
(d) 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.
(e) 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.
(f) 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. 12.
Section 19683.5 of the Government Code is amended to read:19683.5.
If a state employee is successful in an action brought pursuant to Section 19683, the complaining employee shall be reimbursed for all costsSEC. 13.
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.The Legislature finds and declares the following:
(a)State employees should be free to report waste, fraud, abuse of authority, violation of law, or threat to public health without fear of retribution.
(b)Public servants best serve the citizenry when they can be candid and honest without reservation in conducting the people’s business.
