Bill Text: CA AB2700 | 2011-2012 | Regular Session | Introduced
Bill Title: Whistleblower protection.
Spectrum: Slight Partisan Bill (Democrat 7-3)
Status: (Introduced - Dead) 2012-04-25 - From printer. May be heard in committee May 25. [AB2700 Detail]
Download: California-2011-AB2700-Introduced.html
BILL NUMBER: AB 2700 INTRODUCED
BILL TEXT
INTRODUCED BY Committee on Accountability and Administrative Review
(Assembly Members Dickinson (Chair), Garrick (Vice Chair),
Achadjian, Block, Buchanan, Hagman, Huber, Bonnie Lowenthal,
Mitchell, and Portantino)
APRIL 24, 2012
An act to amend Sections 9149.22 and 19683 of, and to add Section
9149.24 to, the Government Code, relating to whistleblowers, and
declaring the urgency thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 2700, as introduced, Committee on Accountability and
Administrative Review. Whistleblower protection.
Existing law, the Whistleblower Protection Act, prohibits a state
or local governmental employee from interfering with the right of a
person to disclose an improper governmental activity to an
investigating committee of the Legislature.
This bill would authorize a state employee or an applicant for
state employment who files a written complaint with his or her
supervisor, manager, or appointing power alleging certain improper
acts to also file a copy of the complaint with the State Personnel
Board. The bill would impose specified fines and penalties on a
person who intentionally engages in specified improper acts against a
state employee or an applicant for state employment who has made a
protected disclosure, as defined. By establishing a new 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.
This bill would declare that it is to take effect immediately as
an urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 9149.22 of the Government Code is amended to
read:
9149.22. For the purposes of this article, the following words
have the following meanings:
(a) "Committee" means any an
investigating committee of the Legislature.
(b) "Employee" means any an
individual appointed by the Governor or employed or holding office in
a state agency, as defined by Section 11000, including the
California State University and the University of California, or
any a public entity as defined by
Section 7260, or any an agency of local
government, as defined in subdivision (d) of Section 8 of Article
XIII B of the California Constitution.
(c) "Illegal order" means a directive to violate or assist in
violating a federal, state, or local law, rule, or regulation, or an
order to work or cause others to work in conditions outside of their
line of duty that would unreasonably threaten the health or safety of
employees or the public.
(c)
(d) "Improper governmental activity" means any
an activity by a governmental agency or by an
employee that is undertaken in the performance of the employee's
official duties, whether or not that action is within the scope of
his or her employment, and that (1) is in violation of any
a state or federal law or regulation, including,
but not limited to, corruption, malfeasance, bribery, theft of
government property, fraudulent claims, fraud, coercion, conversion,
malicious prosecution, misuse of government property, or willful
omission to perform a duty, or (2) is economically
wasteful , or involves gross misconduct,
incompetency, or inefficiency.
(d)
(e) "Person" means any an
individual, corporation, trust, association, any
state or local government, or any an
agency or instrumentality of any of the foregoing.
(f) "Protected disclosure" means a good faith communication,
including a communication based on, or when carrying out, job duties,
that discloses or demonstrates an intention to disclose information
that may evidence (1) an improper governmental activity, or (2) a
condition that may significantly threaten the health or safety of
employees or the public if the disclosure or intention to disclose
was made for the purpose of remedying that condition. Protected
disclosure specifically includes a good faith communication to a
legislative committee alleging an improper governmental activity and
any evidence delivered to the legislative committee in support of the
allegation.
(e)
(g) "Use of official authority or influence" includes
promising to confer, or conferring, any a
benefit; effecting, or threatening to effect, any
a reprisal; or taking, or directing others to
take, or recommending, processing, or approving, any
a personnel action, including, but not limited
to, appointment, promotion, transfer, assignment, performance
evaluation, suspension, or other disciplinary action.
SEC. 2. Section 9149.24 is added to the Government Code, to read:
9149.24. (a) A state employee or applicant for state employment
who files a written complaint with his or her supervisor, manager, or
the appointing power alleging actual or attempted acts of reprisal,
retaliation, threats, coercion, or similar improper acts prohibited
by Section 9149.23 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 filed
with the board shall be filed within 12 months of the most recent act
of reprisal complained about.
(b) 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 ten thousand
dollars ($10,000) and imprisonment in a county jail for a period not
to exceed one year. Pursuant to Section 19683, a state civil service
employee who intentionally engages in that conduct shall be
disciplined by adverse action as provided by Section 19571.
(c) In addition to all other penalties provided by law, 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 shall be
liable in an action for damages brought against him or her 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
has been established, the injured party shall also be entitled to
reasonable attorney's fees as provided by law. However, an 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.
(d) This section is not intended to prevent an appointing power,
manager, or supervisor from taking, directing others to take,
recommending, or approving a personnel action or from failing to take
a personnel action with respect to a state employee or applicant for
state employment if the appointing power, manager, or supervisor
reasonably believes the 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 Section 9149.22.
(e) In a 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 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 in the adverse action.
(f) 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 an employment contract or collective
bargaining agreement.
SEC. 3. 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 reprisal or retaliation as
prohibited by Section 8547.3 or 9149.23 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.
(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 or 9149.23 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, 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 or 9149.23 .
(d) Whenever If the board determines
that a manager, supervisor, or employee , who is
named a party to the retaliation complaint , has
violated Section 8547.3 or 9149.23 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 If 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 an
act prohibited by Section 8547.3 or 9149.23 , 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. 4. 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.
SEC. 5. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to encourage state employees and applicants for state
employment who witness fraud and abuse to report their findings to
the Legislature and to provide immediate protections to those
employees and applicants that are consistent with remedies available
when similar reports are filed with the State Auditor, it is
necessary that this bill take effect immediately.
