| Old | New | Differences | |
|---|---|---|---|
| 1 | - | ||
| 1 | + | Amended IN Assembly April 08, 2019 CALIFORNIA LEGISLATURE 20192020 REGULAR SESSION Assembly Bill No. 1200Introduced by Assembly Member Patterson(Coauthors: Assembly Members Bigelow, Chen, Fong, Kiley, Mathis, and Mayes)February 21, 2019 An act to amend Sections 9149.22, 9149.23, and 19683 of, and to add Sections 9149.24, 9149.25, 9149.26, 9149.27, 9149.28, 9149.29, 9149.29.0, 9149.29.1, 9149.29.2, 9149.29.3, and 9149.29.5 to, Section 8547.2 of the Government Code, relating to whistleblowers.LEGISLATIVE COUNSEL'S DIGESTAB 1200, as amended, Patterson. Whistleblower protection. The California Whistleblower Protection Act prohibits an employee from interfering with a persons rights to disclose improper activity and be free from reprisal under the act. The California Whistleblower Protection act authorizes the 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 California Whistleblower Protection Act act applies to state agencies, as defined, and to the University of California, the California State University, and courts, as specified. The California Whistleblower Protection Act act requires the auditor to establish a means of submitting allegations of improper governmental activity, and generally requires the State Auditor to keep confidential every investigation, including all investigative files and work product. Under the California Whistleblower Protection Act, act, a person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a state employee or an applicant for state employment for having made a protected disclosure, as defined, disclosure is subject to civil liability and criminal penalties. The act defines a protected disclosure to mean, among other things, a good faith communication that discloses information that may evidence an improper governmental activity.This bill would expand the definition of the term protected disclosure to include a complaint made to a Member of the Legislature, the Legislature, or any subdivision thereof.Because this bill would expand the definition of a crime, it 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.Other 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, as defined, to an investigating committee of the Legislature. The Whistleblower Protection Act defines other terms for its purposes, including defining employee to mean any individual appointed by the Governor or employed or holding office in a state agency, including the California State University and the University of California, defined public entities, or any agency of local government.This bill would authorize a committee to investigate and report on improper governmental activities or to refer the improper governmental activity to the State Auditor for investigation pursuant to the California Whistleblower Protection Act. The bill would add provisions in the Whistleblower Protection Act to give a committee authority and duties similar to those of the State Auditor under the California Whistleblower Protection Act. The bill would expand the definition of improper governmental activity to correspond to the definition of that term in the California Whistleblower Protection Act. The bill would also expand the application of the Whistleblower Protection Act by defining employee to include an individual appointed by the Legislature to a state board or commission and who is not a member or employee of the Legislature, a person employed by the courts or the Judicial Council, and a former employee who met the criteria of employee during the persons employment.The bill would establish specific procedures for a state employee, a University of California employee, a California State University employee, or a court employee, including applicants for such employment, to file a written complaint alleging improper acts. The bill would require a complaint to include 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. By expanding the crime of perjury, the bill would impose a state-mandated local program.The bill would authorize a state employee or applicant for state employment who files a written complaint to also file a copy of the written complaint with the State Personnel Board, for action by the board as prescribed.The bill would subject a person who intentionally engages in certain acts against a state employee, a University of California employee, a California State University employee, or a court employee, including applicants for such employment, for having made a protected disclosure, as defined, to civil liability and criminal penalties. by imposing criminal penalties, the bill would impose a state-mandated local program. The bill would exempt an action for damages pursuant to the Whistleblower Protection Act from the claims presentation requirements of the Government Claims Act.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.Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.This bill would make legislative findings to that effect.Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YES Bill TextThe people of the State of California do enact as follows:SECTION 1. Section 8547.2 of the Government Code is amended to read:8547.2. For the purposes of this article, the following terms have the following meanings:(a) Employee means an individual appointed by the Governor, or employed or holding office in a state agency as defined by Section 11000, including, for purposes of Sections 8547.3 to 8547.7, inclusive, an employee of the California State University, or an individual appointed by the Legislature to a state board or commission and who is not a Member or employee of the Legislature. In addition, employee means a person employed by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts for the purposes of Sections 8547.3 to 8547.7, inclusive, and Section 8547.13, except for those provisions of Section 8547.4 concerning notice of adverse action and the State Personnel Board. Employee includes a former employee who met the criteria of this subdivision during his or her their employment.(b) 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) Improper governmental activity means an activity by a state agency or by an employee that is undertaken in the performance of the employees duties, undertaken inside a state office, or, if undertaken outside a state office by the employee, directly relates to state government, whether or not that activity is within the scope of his or her their employment, and that (1) is in violation of any 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 duty, (2) is in violation of an Executive order of the Governor, a California Rule of Court, or any policy or procedure mandated by the State Administrative Manual or State Contracting Manual, or (3) is economically wasteful, involves gross misconduct, incompetency, or inefficiency. For purposes of Sections 8547.4, 8547.5, 8547.7, 8547.10, and 8547.11, improper governmental activity includes any activity by the University of California or by an employee, including an officer or faculty member, who otherwise meets the criteria of this subdivision. For purposes of Sections 8547.4, 8547.5, and 8547.13, improper governmental activity includes any activity by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts, or by an employee thereof, who otherwise meets the criteria of this subdivision.(d) Person means an individual, corporation, trust, association, a state or local government, or an agency or instrumentality of any of the foregoing.(e) 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 the California State Auditors Office alleging an improper governmental activity and any evidence delivered to the California State Auditors Office in support of the allegation. Protected disclosure also includes, but is not limited to, a complaint made to the Commission on Judicial Performance. Performance or to a Member of the Legislature, the Legislature, or any subdivision thereof.(f) State agency is defined by Section 11000. State agency includes the University of California for purposes of Sections 8547.5 to 8547.7, inclusive, and the California State University for purposes of Sections 8547.3 to 8547.7, inclusive. Sections 8547.3 to 8547.7, inclusive, shall apply to the Supreme Court, the courts of appeal, the superior courts, and the Administrative Office of the Courts in the same manner as they apply to a state agency.SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB 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 XIIIB of the California Constitution.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 an investigating committee of the Legislature.(b)(1)Employee means 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 public entity as defined by Section 7260, or any agency of local government, as defined in subdivision (d) of Section 8 of Article XIII B of the California Constitution.(2)Employee also means an individual appointed by the Legislature to a state board or commission and who is not a member or employee of the Legislature, and a person employed by the Supreme Court, a court of appeal, a superior court, or the Judicial Council.(3)Employee includes a former employee who met the criteria of this subdivision during the persons employment.(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. (d)Improper governmental activity means an activity by a governmental agency or by an employee that is undertaken in the performance of the employees official duties, whether or not that action is within the scope of their employment, and that (1) is in violation of 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 duty, (2) is in violation of an Executive Order of the Governor, a California Rule of Court, or any policy or procedure mandated by the State Administrative Manual or the State Contracting Manual, or (3) is economically wasteful, or involves gross misconduct, incompetency, or inefficiency. For purposes of Sections 9149.24, 9149.25, 9149.27, 9149.29.0, and 9149.29.1, improper governmental activity includes any activity by the University of California or by an employee, including an officer or faculty member, who otherwise meets the criteria of this subdivision. For purposes of Sections 9149.24, 9149.25, and 9129.29.3, improper governmental activity includes any activity by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts, or by an employee thereof, who otherwise meets the criteria of this subdivision.(e)Person means an individual, corporation, trust, association, an state or local government, or 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 committee alleging an improper governmental activity and any evidence delivered to a committee in support of the allegation. Protected disclosure also includes, but is not limited to, a complaint made to the Commission on Judicial Performance.(g)State agency, except as provided in this subdivision, has the same meaning as defined by Section 11000. State agency includes the University of California for purposes of Sections 9149.25 to 9149.27, inclusive, and the California State University for purposes of Sections 9149.23 to 9149.27, inclusive. Sections 9149.23 to 9149.27, inclusive, shall apply to the Supreme Court, the courts of appeal, the superior courts, and the Administrative Office of the Courts in the same manner as they apply to a state agency. (h)Use of official authority or influence includes promising to confer, or conferring, any benefit; effecting, or threatening to effect, any reprisal; or 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.SEC. 2.Section 9149.23 of the Government Code is amended to read:9149.23.(a)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 any person for the purpose of interfering with the rights conferred pursuant to this article.(b)Any employee who violates subdivision (a) may be liable in an action for civil damages brought against the employee by the offended party.(c)Nothing in this section shall be construed to authorize an individual to disclose information otherwise prohibited by or under law.(d)Nothing in this section shall be construed to abrogate or limit any other theory of liability or any other remedy that is otherwise available at law.SEC. 3.Section 9149.24 is added to the Government Code, to read:9149.24.A committee may investigate and report on improper governmental activities, or may refer the improper governmental activity to the State Auditor for investigation pursuant to Article 3 (commencing with Section 8547) of Chapter 6.5 of Division 1. If, after investigating, the committee finds that an employee may have engaged or participated in improper governmental activities, the committee may prepare an investigative report and send a copy of the investigative report to the employees appointing power.SEC. 4.Section 9149.25 is added to the Government Code, to read:9149.25.(a)A committee may request that persons submitting an allegation provide their name and contact information and provide the names and contact information for any persons who could help to substantiate the claim. However, the committee shall not require persons submitting an allegation to provide their name or contact information.(b)Upon receiving specific information that any employee or state agency has engaged in an improper governmental activity, the committee 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 committee may make the disclosure to a law enforcement agency that is conducting a criminal investigation, or to the State Auditor for investigation pursuant to Article 3 (commencing with Section 8547) of Chapter 6.5 of Division 1. SEC. 5.Section 9149.26 is added to the Government Code, to read:9149.26.A committee may request the assistance of any state department, agency, or employee in evaluating an allegation or conducting any investigation of an improper governmental activity as authorized by this article. In response to a request for assistance from the committee, that state department, agency, or employee shall provide the assistance, including, but not limited to, providing access to documents or other information in a timely manner. If an investigation conducted by the committee involves access to confidential academic peer review records of University of California academic personnel, these records shall be provided in a form consistent with university policy effective on August 1, 1992. Information obtained from the committee by any department, agency, or employee as a result of the committees request for assistance, nor any information obtained thereafter as a result of further investigation, shall not be divulged or made known to any person without the prior approval of the committee. SEC. 6.Section 9149.27 is added to the Government Code, to read:9149.27.A committee shall keep confidential every investigation, including, but not limited to, all investigative files and work product, except that the committee, whenever the chair determines it necessary to serve the interests of the state, and subject to the limitations of Section 9149.25, may issue a public report of an investigation that has substantiated an improper governmental activity, or may conduct a public hearing as part of the investigation, keeping confidential the identity of the employee or employees involved. In addition, subject to the limitations of Section 9149.25, the committee may release any findings or evidence supporting any findings resulting from an investigation conducted pursuant to this article whenever the committee determines it necessary to serve the interests of the state. SEC. 7.Section 9149.28 is added to the Government Code, to read:9149.28.(a)A state employee or applicant for state employment who files a written complaint with their 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)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) 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 them 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 attorneys 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 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 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.(e)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)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. 8.Section 9149.29 is added to the Government Code, to read:9149.29.Notwithstanding Section 19572, if the State Personnel Board determines that there is a reasonable basis for an alleged violation, or finds an actual violation of Section 9149.23 or 19683, it shall transmit a copy of the investigative report to the committee. All working papers pertaining to the investigative report shall be made available under subpoena in a civil action brought under Section 19683. SEC. 9.Section 9149.29.0 is added to the Government Code, to read:9149.29.0.(a)A University of California employee, including an officer or faculty member, or applicant for employment may file a written complaint with their supervisor or manager, or with any other university officer designated for that purpose by the regents, alleging actual or attempted acts of reprisal, retaliation, threats, coercion, or similar improper acts for having made a protected disclosure, 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 of reprisal complained about.(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) 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 them 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 attorneys 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.(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. 10.Section 9149.29.1 is added to the Government Code, to read:9149.29.1.(a)A University of California employee, including an officer or faculty member, 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 any person for the purpose of interfering with the right of that person to disclose to a University of California official, designated for that purpose by the regents, or an investigating committee of the Legislature matters within the scope of this article.(b)For the purpose of subdivision (a), use of official authority or influence includes promising to confer, or conferring, any benefit; effecting, or threatening to effect, any reprisal; or 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.(c)Any employee who violates subdivision (a) may be liable in an action for civil damages brought against the employee by the offended party.(d)Nothing in this section shall be construed to authorize an individual to disclose information otherwise prohibited by or under law. SEC. 11.Section 9149.29.2 is added to the Government Code, to read:9149.29.2.(a)A California State University employee, including an officer or faculty member, or applicant for employment may file a written complaint with their supervisor or manager, or with any other university officer designated for that purpose by the trustees, alleging actual or attempted acts of reprisal, retaliation, threats, coercion, or similar improper acts for having made a protected disclosure, 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 of reprisal complained about.(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) 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 them 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 attorneys 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.(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. 12.Section 9149.29.3 is added to the Government Code, to read:9149.29.3.(a)As used in this section:(1)Agency means the Supreme Court, the courts of appeal, the superior courts, or the Judicial Council.(2)Employee means a person employed by the Supreme Court, a court of appeal, a superior court, or the Judicial Council.(b)An employee or applicant for employment who files a written complaint with 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 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 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) 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 them 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 attorneys fees as provided by law. It is not a prerequisite for an action for damages for the injured party to first file a complaint pursuant to subdivision (b). (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 an investigative committee of the Legislature 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. 13.Section 9149.29.5 is added to the Government Code, to read:9149.29.5.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. 14.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 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. 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 boards 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 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 managers, supervisors, or employees 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 or 9149.23, the board shall notify the managers, supervisors, or employees 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. 15.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. 16.The Legislature finds and declares that Section 5 of this act, which adds Section 9149.26 to the Government Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:In order to protect the identity of whistleblowers, it is necessary that information related to protected disclosures remain confidential. | |
| 2 | 2 | ||
| 3 | - | ||
| 3 | + | Amended IN Assembly April 08, 2019 CALIFORNIA LEGISLATURE 20192020 REGULAR SESSION Assembly Bill No. 1200Introduced by Assembly Member Patterson(Coauthors: Assembly Members Bigelow, Chen, Fong, Kiley, Mathis, and Mayes)February 21, 2019 An act to amend Sections 9149.22, 9149.23, and 19683 of, and to add Sections 9149.24, 9149.25, 9149.26, 9149.27, 9149.28, 9149.29, 9149.29.0, 9149.29.1, 9149.29.2, 9149.29.3, and 9149.29.5 to, Section 8547.2 of the Government Code, relating to whistleblowers.LEGISLATIVE COUNSEL'S DIGESTAB 1200, as amended, Patterson. Whistleblower protection. The California Whistleblower Protection Act prohibits an employee from interfering with a persons rights to disclose improper activity and be free from reprisal under the act. The California Whistleblower Protection act authorizes the 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 California Whistleblower Protection Act act applies to state agencies, as defined, and to the University of California, the California State University, and courts, as specified. The California Whistleblower Protection Act act requires the auditor to establish a means of submitting allegations of improper governmental activity, and generally requires the State Auditor to keep confidential every investigation, including all investigative files and work product. Under the California Whistleblower Protection Act, act, a person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a state employee or an applicant for state employment for having made a protected disclosure, as defined, disclosure is subject to civil liability and criminal penalties. The act defines a protected disclosure to mean, among other things, a good faith communication that discloses information that may evidence an improper governmental activity.This bill would expand the definition of the term protected disclosure to include a complaint made to a Member of the Legislature, the Legislature, or any subdivision thereof.Because this bill would expand the definition of a crime, it 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.Other 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, as defined, to an investigating committee of the Legislature. The Whistleblower Protection Act defines other terms for its purposes, including defining employee to mean any individual appointed by the Governor or employed or holding office in a state agency, including the California State University and the University of California, defined public entities, or any agency of local government.This bill would authorize a committee to investigate and report on improper governmental activities or to refer the improper governmental activity to the State Auditor for investigation pursuant to the California Whistleblower Protection Act. The bill would add provisions in the Whistleblower Protection Act to give a committee authority and duties similar to those of the State Auditor under the California Whistleblower Protection Act. The bill would expand the definition of improper governmental activity to correspond to the definition of that term in the California Whistleblower Protection Act. The bill would also expand the application of the Whistleblower Protection Act by defining employee to include an individual appointed by the Legislature to a state board or commission and who is not a member or employee of the Legislature, a person employed by the courts or the Judicial Council, and a former employee who met the criteria of employee during the persons employment.The bill would establish specific procedures for a state employee, a University of California employee, a California State University employee, or a court employee, including applicants for such employment, to file a written complaint alleging improper acts. The bill would require a complaint to include 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. By expanding the crime of perjury, the bill would impose a state-mandated local program.The bill would authorize a state employee or applicant for state employment who files a written complaint to also file a copy of the written complaint with the State Personnel Board, for action by the board as prescribed.The bill would subject a person who intentionally engages in certain acts against a state employee, a University of California employee, a California State University employee, or a court employee, including applicants for such employment, for having made a protected disclosure, as defined, to civil liability and criminal penalties. by imposing criminal penalties, the bill would impose a state-mandated local program. The bill would exempt an action for damages pursuant to the Whistleblower Protection Act from the claims presentation requirements of the Government Claims Act.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.Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.This bill would make legislative findings to that effect.Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YES | |
| 4 | 4 | ||
| 5 | - | ||
| 5 | + | Amended IN Assembly April 08, 2019 | |
| 6 | 6 | ||
| 7 | - | Amended IN Assembly April 29, 2019 | |
| 8 | 7 | Amended IN Assembly April 08, 2019 | |
| 9 | 8 | ||
| 10 | 9 | CALIFORNIA LEGISLATURE 20192020 REGULAR SESSION | |
| 11 | 10 | ||
| 12 | 11 | Assembly Bill No. 1200 | |
| 13 | 12 | ||
| 14 | - | Introduced by Assembly Member Patterson(Coauthors: Assembly Members Bigelow, Chen, | |
| 13 | + | Introduced by Assembly Member Patterson(Coauthors: Assembly Members Bigelow, Chen, Fong, Kiley, Mathis, and Mayes)February 21, 2019 | |
| 15 | 14 | ||
| 16 | - | Introduced by Assembly Member Patterson(Coauthors: Assembly Members Bigelow, Chen, | |
| 15 | + | Introduced by Assembly Member Patterson(Coauthors: Assembly Members Bigelow, Chen, Fong, Kiley, Mathis, and Mayes) | |
| 17 | 16 | February 21, 2019 | |
| 18 | 17 | ||
| 19 | - | An act to amend | |
| 18 | + | An act to amend Sections 9149.22, 9149.23, and 19683 of, and to add Sections 9149.24, 9149.25, 9149.26, 9149.27, 9149.28, 9149.29, 9149.29.0, 9149.29.1, 9149.29.2, 9149.29.3, and 9149.29.5 to, Section 8547.2 of the Government Code, relating to whistleblowers. | |
| 20 | 19 | ||
| 21 | 20 | LEGISLATIVE COUNSEL'S DIGEST | |
| 22 | 21 | ||
| 23 | 22 | ## LEGISLATIVE COUNSEL'S DIGEST | |
| 24 | 23 | ||
| 25 | 24 | AB 1200, as amended, Patterson. Whistleblower protection. | |
| 26 | 25 | ||
| 27 | - | ||
| 26 | + | The California Whistleblower Protection Act prohibits an employee from interfering with a persons rights to disclose improper activity and be free from reprisal under the act. The California Whistleblower Protection act authorizes the 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 California Whistleblower Protection Act act applies to state agencies, as defined, and to the University of California, the California State University, and courts, as specified. The California Whistleblower Protection Act act requires the auditor to establish a means of submitting allegations of improper governmental activity, and generally requires the State Auditor to keep confidential every investigation, including all investigative files and work product. Under the California Whistleblower Protection Act, act, a person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a state employee or an applicant for state employment for having made a protected disclosure, as defined, disclosure is subject to civil liability and criminal penalties. The act defines a protected disclosure to mean, among other things, a good faith communication that discloses information that may evidence an improper governmental activity.This bill would expand the definition of the term protected disclosure to include a complaint made to a Member of the Legislature, the Legislature, or any subdivision thereof.Because this bill would expand the definition of a crime, it 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.Other 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, as defined, to an investigating committee of the Legislature. The Whistleblower Protection Act defines other terms for its purposes, including defining employee to mean any individual appointed by the Governor or employed or holding office in a state agency, including the California State University and the University of California, defined public entities, or any agency of local government.This bill would authorize a committee to investigate and report on improper governmental activities or to refer the improper governmental activity to the State Auditor for investigation pursuant to the California Whistleblower Protection Act. The bill would add provisions in the Whistleblower Protection Act to give a committee authority and duties similar to those of the State Auditor under the California Whistleblower Protection Act. The bill would expand the definition of improper governmental activity to correspond to the definition of that term in the California Whistleblower Protection Act. The bill would also expand the application of the Whistleblower Protection Act by defining employee to include an individual appointed by the Legislature to a state board or commission and who is not a member or employee of the Legislature, a person employed by the courts or the Judicial Council, and a former employee who met the criteria of employee during the persons employment.The bill would establish specific procedures for a state employee, a University of California employee, a California State University employee, or a court employee, including applicants for such employment, to file a written complaint alleging improper acts. The bill would require a complaint to include 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. By expanding the crime of perjury, the bill would impose a state-mandated local program.The bill would authorize a state employee or applicant for state employment who files a written complaint to also file a copy of the written complaint with the State Personnel Board, for action by the board as prescribed.The bill would subject a person who intentionally engages in certain acts against a state employee, a University of California employee, a California State University employee, or a court employee, including applicants for such employment, for having made a protected disclosure, as defined, to civil liability and criminal penalties. by imposing criminal penalties, the bill would impose a state-mandated local program. The bill would exempt an action for damages pursuant to the Whistleblower Protection Act from the claims presentation requirements of the Government Claims Act.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.Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.This bill would make legislative findings to that effect. | |
| 28 | 27 | ||
| 29 | - | The | |
| 28 | + | The California Whistleblower Protection Act prohibits an employee from interfering with a persons rights to disclose improper activity and be free from reprisal under the act. The California Whistleblower Protection act authorizes the 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 California Whistleblower Protection Act act applies to state agencies, as defined, and to the University of California, the California State University, and courts, as specified. The California Whistleblower Protection Act act requires the auditor to establish a means of submitting allegations of improper governmental activity, and generally requires the State Auditor to keep confidential every investigation, including all investigative files and work product. Under the California Whistleblower Protection Act, act, a person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a state employee or an applicant for state employment for having made a protected disclosure, as defined, disclosure is subject to civil liability and criminal penalties. The act defines a protected disclosure to mean, among other things, a good faith communication that discloses information that may evidence an improper governmental activity. | |
| 29 | + | ||
| 30 | + | This bill would expand the definition of the term protected disclosure to include a complaint made to a Member of the Legislature, the Legislature, or any subdivision thereof. | |
| 31 | + | ||
| 32 | + | Because this bill would expand the definition of a crime, it would impose a state-mandated local program. | |
| 33 | + | ||
| 34 | + | 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. | |
| 35 | + | ||
| 36 | + | This bill would provide that no reimbursement is required by this act for a specified reason. | |
| 37 | + | ||
| 38 | + | Other 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, as defined, to an investigating committee of the Legislature. The Whistleblower Protection Act defines other terms for its purposes, including defining employee to mean any individual appointed by the Governor or employed or holding office in a state agency, including the California State University and the University of California, defined public entities, or any agency of local government. | |
| 30 | 39 | ||
| 31 | 40 | ||
| 32 | 41 | ||
| 33 | - | (1) The California Whistleblower Protection Act prohibits an employee from interfering with a persons rights to disclose improper activity and be free from reprisal under the act. The act authorizes the 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 California Whistleblower Protection Act applies to state agencies, as defined, and to the University of California, the California State University, and courts, as specified. The act requires the auditor to establish a means of submitting allegations of improper governmental activity, and generally requires the State Auditor to keep confidential every investigation, including all investigative files and work product. Under the act, California Whistleblower Protection Act, a person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a state employee or an applicant for state employment for having made a protected disclosure is subject to civil liability and criminal penalties. The act California Whistleblower Protection Act defines a protected disclosure to mean, among other things, a good faith communication that discloses information that may evidence an improper governmental activity. | |
| 34 | - | ||
| 35 | - | This bill would expand the definition of the term protected disclosure to include a complaint made to a Member of the Legislature, the Legislature, or any subdivision thereof. By expanding the definition of a crime, the bill would impose a state-mandated local program. | |
| 36 | - | ||
| 37 | - | Because this bill would expand the definition of a crime, it would impose a state-mandated local program. | |
| 42 | + | This bill would authorize a committee to investigate and report on improper governmental activities or to refer the improper governmental activity to the State Auditor for investigation pursuant to the California Whistleblower Protection Act. The bill would add provisions in the Whistleblower Protection Act to give a committee authority and duties similar to those of the State Auditor under the California Whistleblower Protection Act. The bill would expand the definition of improper governmental activity to correspond to the definition of that term in the California Whistleblower Protection Act. The bill would also expand the application of the Whistleblower Protection Act by defining employee to include an individual appointed by the Legislature to a state board or commission and who is not a member or employee of the Legislature, a person employed by the courts or the Judicial Council, and a former employee who met the criteria of employee during the persons employment. | |
| 38 | 43 | ||
| 39 | 44 | ||
| 40 | 45 | ||
| 41 | - | (2) Other 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, as defined, to an investigating committee of the Legislature. The Whistleblower Protection Act defines other terms for its purposes, including defining employee to mean any individual appointed by the Governor or employed or holding office in a state agency, including the California State University and the University of California, defined public entities, or any agency of local government. | |
| 42 | - | ||
| 43 | - | This bill would authorize a legislative investigative committee to investigate and report on improper governmental activities or to refer the improper governmental activity to the State Auditor for investigation pursuant to the California Whistleblower Protection Act. The bill would also authorize the committee to prepare and send copies of investigative reports to an employees appointing power if it finds that the employee may have participated in improper governmental activities. The bill would authorize a committee to request additional information from a person submitting an allegation, as specified. The bill would prescribe various requirements for maintaining the confidentiality of people providing information in confidence and information obtained on investigation. The bill would authorize a legislative investigative committee to request assistance from a state department, agency, or employee in evaluating an allegation or conducting any investigation of an improper governmental activity and would generally require that such assistance be provided, as specified. | |
| 44 | - | ||
| 45 | - | The | |
| 46 | + | The bill would establish specific procedures for a state employee, a University of California employee, a California State University employee, or a court employee, including applicants for such employment, to file a written complaint alleging improper acts. The bill would require a complaint to include 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. By expanding the crime of perjury, the bill would impose a state-mandated local program. | |
| 46 | 47 | ||
| 47 | 48 | ||
| 48 | 49 | ||
| 49 | - | (3) 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. | |
| 50 | + | The bill would authorize a state employee or applicant for state employment who files a written complaint to also file a copy of the written complaint with the State Personnel Board, for action by the board as prescribed. | |
| 51 | + | ||
| 52 | + | ||
| 53 | + | ||
| 54 | + | The bill would subject a person who intentionally engages in certain acts against a state employee, a University of California employee, a California State University employee, or a court employee, including applicants for such employment, for having made a protected disclosure, as defined, to civil liability and criminal penalties. by imposing criminal penalties, the bill would impose a state-mandated local program. The bill would exempt an action for damages pursuant to the Whistleblower Protection Act from the claims presentation requirements of the Government Claims Act. | |
| 55 | + | ||
| 56 | + | ||
| 57 | + | ||
| 58 | + | 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. | |
| 59 | + | ||
| 60 | + | ||
| 50 | 61 | ||
| 51 | 62 | This bill would provide that no reimbursement is required by this act for a specified reason. | |
| 52 | 63 | ||
| 53 | - | (4) Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest. | |
| 64 | + | ||
| 65 | + | ||
| 66 | + | Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest. | |
| 67 | + | ||
| 68 | + | ||
| 54 | 69 | ||
| 55 | 70 | This bill would make legislative findings to that effect. | |
| 71 | + | ||
| 72 | + | ||
| 56 | 73 | ||
| 57 | 74 | ## Digest Key | |
| 58 | 75 | ||
| 59 | 76 | ## Bill Text | |
| 60 | 77 | ||
| 61 | - | The people of the State of California do enact as follows:SECTION 1. Section 8547.2 of the Government Code is amended to read:8547.2. For the purposes of this article, the following terms have the following meanings:(a) Employee means an individual appointed by the Governor, or employed or holding office in a state agency as defined by Section 11000, including, for purposes of Sections 8547.3 to 8547.7, inclusive, an employee of the California State University, or an individual appointed by the Legislature to a state board or commission and who is not a Member or employee of the Legislature. In addition, employee means a person employed by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts for the purposes of Sections 8547.3 to 8547.7, inclusive, and Section 8547.13, except for those provisions of Section 8547.4 concerning notice of adverse action and the State Personnel Board. Employee includes a former employee who met the criteria of this subdivision during their employment.(b) 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) Improper governmental activity means an activity by a state agency or by an employee that is undertaken in the performance of the employees duties, undertaken inside a state office, or, if undertaken outside a state office by the employee, directly relates to state government, whether or not that activity is within the scope of their employment, and that (1) is in violation of any 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 duty, (2) is in violation of an Executive order of the Governor, a California Rule of Court, or any policy or procedure mandated by the State Administrative Manual or State Contracting Manual, or (3) is economically wasteful, involves gross misconduct, incompetency, or inefficiency. For purposes of Sections 8547.4, 8547.5, 8547.7, 8547.10, and 8547.11, improper governmental activity includes any activity by the University of California or by an employee, including an officer or faculty member, who otherwise meets the criteria of this subdivision. For purposes of Sections 8547.4, 8547.5, and 8547.13, improper governmental activity includes any activity by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts, or by an employee thereof, who otherwise meets the criteria of this subdivision.(d) Person means an individual, corporation, trust, association, a state or local government, or an agency or instrumentality of any of the foregoing.(e) 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 the California State Auditors Office alleging an improper governmental activity and any evidence delivered to the California State Auditors Office in support of the allegation. Protected disclosure also includes, but is not limited to, a complaint made to the Commission on Judicial Performance or to a Member of the Legislature, the Legislature, or any subdivision thereof.(f) State agency is defined by Section 11000. State agency includes the University of California for purposes of Sections 8547.5 to 8547.7, inclusive, and the California State University for purposes of Sections 8547.3 to 8547.7, inclusive. Sections 8547.3 to 8547.7, inclusive, shall apply to the Supreme Court, the courts of appeal, the superior courts, and the Administrative Office of the Courts in the same manner as they apply to a state agency.SEC. 2. Section 9149. | |
| 78 | + | The people of the State of California do enact as follows:SECTION 1. Section 8547.2 of the Government Code is amended to read:8547.2. For the purposes of this article, the following terms have the following meanings:(a) Employee means an individual appointed by the Governor, or employed or holding office in a state agency as defined by Section 11000, including, for purposes of Sections 8547.3 to 8547.7, inclusive, an employee of the California State University, or an individual appointed by the Legislature to a state board or commission and who is not a Member or employee of the Legislature. In addition, employee means a person employed by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts for the purposes of Sections 8547.3 to 8547.7, inclusive, and Section 8547.13, except for those provisions of Section 8547.4 concerning notice of adverse action and the State Personnel Board. Employee includes a former employee who met the criteria of this subdivision during his or her their employment.(b) 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) Improper governmental activity means an activity by a state agency or by an employee that is undertaken in the performance of the employees duties, undertaken inside a state office, or, if undertaken outside a state office by the employee, directly relates to state government, whether or not that activity is within the scope of his or her their employment, and that (1) is in violation of any 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 duty, (2) is in violation of an Executive order of the Governor, a California Rule of Court, or any policy or procedure mandated by the State Administrative Manual or State Contracting Manual, or (3) is economically wasteful, involves gross misconduct, incompetency, or inefficiency. For purposes of Sections 8547.4, 8547.5, 8547.7, 8547.10, and 8547.11, improper governmental activity includes any activity by the University of California or by an employee, including an officer or faculty member, who otherwise meets the criteria of this subdivision. For purposes of Sections 8547.4, 8547.5, and 8547.13, improper governmental activity includes any activity by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts, or by an employee thereof, who otherwise meets the criteria of this subdivision.(d) Person means an individual, corporation, trust, association, a state or local government, or an agency or instrumentality of any of the foregoing.(e) 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 the California State Auditors Office alleging an improper governmental activity and any evidence delivered to the California State Auditors Office in support of the allegation. Protected disclosure also includes, but is not limited to, a complaint made to the Commission on Judicial Performance. Performance or to a Member of the Legislature, the Legislature, or any subdivision thereof.(f) State agency is defined by Section 11000. State agency includes the University of California for purposes of Sections 8547.5 to 8547.7, inclusive, and the California State University for purposes of Sections 8547.3 to 8547.7, inclusive. Sections 8547.3 to 8547.7, inclusive, shall apply to the Supreme Court, the courts of appeal, the superior courts, and the Administrative Office of the Courts in the same manner as they apply to a state agency.SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB 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 XIIIB of the California Constitution.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 an investigating committee of the Legislature.(b)(1)Employee means 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 public entity as defined by Section 7260, or any agency of local government, as defined in subdivision (d) of Section 8 of Article XIII B of the California Constitution.(2)Employee also means an individual appointed by the Legislature to a state board or commission and who is not a member or employee of the Legislature, and a person employed by the Supreme Court, a court of appeal, a superior court, or the Judicial Council.(3)Employee includes a former employee who met the criteria of this subdivision during the persons employment.(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. (d)Improper governmental activity means an activity by a governmental agency or by an employee that is undertaken in the performance of the employees official duties, whether or not that action is within the scope of their employment, and that (1) is in violation of 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 duty, (2) is in violation of an Executive Order of the Governor, a California Rule of Court, or any policy or procedure mandated by the State Administrative Manual or the State Contracting Manual, or (3) is economically wasteful, or involves gross misconduct, incompetency, or inefficiency. For purposes of Sections 9149.24, 9149.25, 9149.27, 9149.29.0, and 9149.29.1, improper governmental activity includes any activity by the University of California or by an employee, including an officer or faculty member, who otherwise meets the criteria of this subdivision. For purposes of Sections 9149.24, 9149.25, and 9129.29.3, improper governmental activity includes any activity by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts, or by an employee thereof, who otherwise meets the criteria of this subdivision.(e)Person means an individual, corporation, trust, association, an state or local government, or 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 committee alleging an improper governmental activity and any evidence delivered to a committee in support of the allegation. Protected disclosure also includes, but is not limited to, a complaint made to the Commission on Judicial Performance.(g)State agency, except as provided in this subdivision, has the same meaning as defined by Section 11000. State agency includes the University of California for purposes of Sections 9149.25 to 9149.27, inclusive, and the California State University for purposes of Sections 9149.23 to 9149.27, inclusive. Sections 9149.23 to 9149.27, inclusive, shall apply to the Supreme Court, the courts of appeal, the superior courts, and the Administrative Office of the Courts in the same manner as they apply to a state agency. (h)Use of official authority or influence includes promising to confer, or conferring, any benefit; effecting, or threatening to effect, any reprisal; or 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.SEC. 2.Section 9149.23 of the Government Code is amended to read:9149.23.(a)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 any person for the purpose of interfering with the rights conferred pursuant to this article.(b)Any employee who violates subdivision (a) may be liable in an action for civil damages brought against the employee by the offended party.(c)Nothing in this section shall be construed to authorize an individual to disclose information otherwise prohibited by or under law.(d)Nothing in this section shall be construed to abrogate or limit any other theory of liability or any other remedy that is otherwise available at law.SEC. 3.Section 9149.24 is added to the Government Code, to read:9149.24.A committee may investigate and report on improper governmental activities, or may refer the improper governmental activity to the State Auditor for investigation pursuant to Article 3 (commencing with Section 8547) of Chapter 6.5 of Division 1. If, after investigating, the committee finds that an employee may have engaged or participated in improper governmental activities, the committee may prepare an investigative report and send a copy of the investigative report to the employees appointing power.SEC. 4.Section 9149.25 is added to the Government Code, to read:9149.25.(a)A committee may request that persons submitting an allegation provide their name and contact information and provide the names and contact information for any persons who could help to substantiate the claim. However, the committee shall not require persons submitting an allegation to provide their name or contact information.(b)Upon receiving specific information that any employee or state agency has engaged in an improper governmental activity, the committee 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 committee may make the disclosure to a law enforcement agency that is conducting a criminal investigation, or to the State Auditor for investigation pursuant to Article 3 (commencing with Section 8547) of Chapter 6.5 of Division 1. SEC. 5.Section 9149.26 is added to the Government Code, to read:9149.26.A committee may request the assistance of any state department, agency, or employee in evaluating an allegation or conducting any investigation of an improper governmental activity as authorized by this article. In response to a request for assistance from the committee, that state department, agency, or employee shall provide the assistance, including, but not limited to, providing access to documents or other information in a timely manner. If an investigation conducted by the committee involves access to confidential academic peer review records of University of California academic personnel, these records shall be provided in a form consistent with university policy effective on August 1, 1992. Information obtained from the committee by any department, agency, or employee as a result of the committees request for assistance, nor any information obtained thereafter as a result of further investigation, shall not be divulged or made known to any person without the prior approval of the committee. SEC. 6.Section 9149.27 is added to the Government Code, to read:9149.27.A committee shall keep confidential every investigation, including, but not limited to, all investigative files and work product, except that the committee, whenever the chair determines it necessary to serve the interests of the state, and subject to the limitations of Section 9149.25, may issue a public report of an investigation that has substantiated an improper governmental activity, or may conduct a public hearing as part of the investigation, keeping confidential the identity of the employee or employees involved. In addition, subject to the limitations of Section 9149.25, the committee may release any findings or evidence supporting any findings resulting from an investigation conducted pursuant to this article whenever the committee determines it necessary to serve the interests of the state. SEC. 7.Section 9149.28 is added to the Government Code, to read:9149.28.(a)A state employee or applicant for state employment who files a written complaint with their 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)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) 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 them 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 attorneys 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 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 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.(e)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)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. 8.Section 9149.29 is added to the Government Code, to read:9149.29.Notwithstanding Section 19572, if the State Personnel Board determines that there is a reasonable basis for an alleged violation, or finds an actual violation of Section 9149.23 or 19683, it shall transmit a copy of the investigative report to the committee. All working papers pertaining to the investigative report shall be made available under subpoena in a civil action brought under Section 19683. SEC. 9.Section 9149.29.0 is added to the Government Code, to read:9149.29.0.(a)A University of California employee, including an officer or faculty member, or applicant for employment may file a written complaint with their supervisor or manager, or with any other university officer designated for that purpose by the regents, alleging actual or attempted acts of reprisal, retaliation, threats, coercion, or similar improper acts for having made a protected disclosure, 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 of reprisal complained about.(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) 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 them 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 attorneys 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.(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. 10.Section 9149.29.1 is added to the Government Code, to read:9149.29.1.(a)A University of California employee, including an officer or faculty member, 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 any person for the purpose of interfering with the right of that person to disclose to a University of California official, designated for that purpose by the regents, or an investigating committee of the Legislature matters within the scope of this article.(b)For the purpose of subdivision (a), use of official authority or influence includes promising to confer, or conferring, any benefit; effecting, or threatening to effect, any reprisal; or 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.(c)Any employee who violates subdivision (a) may be liable in an action for civil damages brought against the employee by the offended party.(d)Nothing in this section shall be construed to authorize an individual to disclose information otherwise prohibited by or under law. SEC. 11.Section 9149.29.2 is added to the Government Code, to read:9149.29.2.(a)A California State University employee, including an officer or faculty member, or applicant for employment may file a written complaint with their supervisor or manager, or with any other university officer designated for that purpose by the trustees, alleging actual or attempted acts of reprisal, retaliation, threats, coercion, or similar improper acts for having made a protected disclosure, 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 of reprisal complained about.(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) 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 them 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 attorneys 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.(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. 12.Section 9149.29.3 is added to the Government Code, to read:9149.29.3.(a)As used in this section:(1)Agency means the Supreme Court, the courts of appeal, the superior courts, or the Judicial Council.(2)Employee means a person employed by the Supreme Court, a court of appeal, a superior court, or the Judicial Council.(b)An employee or applicant for employment who files a written complaint with 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 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 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) 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 them 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 attorneys fees as provided by law. It is not a prerequisite for an action for damages for the injured party to first file a complaint pursuant to subdivision (b). (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 an investigative committee of the Legislature 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. 13.Section 9149.29.5 is added to the Government Code, to read:9149.29.5.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. 14.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 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. 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 boards 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 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 managers, supervisors, or employees 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 or 9149.23, the board shall notify the managers, supervisors, or employees 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. 15.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. 16.The Legislature finds and declares that Section 5 of this act, which adds Section 9149.26 to the Government Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:In order to protect the identity of whistleblowers, it is necessary that information related to protected disclosures remain confidential. | |
| 62 | 79 | ||
| 63 | 80 | The people of the State of California do enact as follows: | |
| 64 | 81 | ||
| 65 | 82 | ## The people of the State of California do enact as follows: | |
| 66 | 83 | ||
| 67 | - | SECTION 1. Section 8547.2 of the Government Code is amended to read:8547.2. For the purposes of this article, the following terms have the following meanings:(a) Employee means an individual appointed by the Governor, or employed or holding office in a state agency as defined by Section 11000, including, for purposes of Sections 8547.3 to 8547.7, inclusive, an employee of the California State University, or an individual appointed by the Legislature to a state board or commission and who is not a Member or employee of the Legislature. In addition, employee means a person employed by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts for the purposes of Sections 8547.3 to 8547.7, inclusive, and Section 8547.13, except for those provisions of Section 8547.4 concerning notice of adverse action and the State Personnel Board. Employee includes a former employee who met the criteria of this subdivision during their employment.(b) 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) Improper governmental activity means an activity by a state agency or by an employee that is undertaken in the performance of the employees duties, undertaken inside a state office, or, if undertaken outside a state office by the employee, directly relates to state government, whether or not that activity is within the scope of their employment, and that (1) is in violation of any 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 duty, (2) is in violation of an Executive order of the Governor, a California Rule of Court, or any policy or procedure mandated by the State Administrative Manual or State Contracting Manual, or (3) is economically wasteful, involves gross misconduct, incompetency, or inefficiency. For purposes of Sections 8547.4, 8547.5, 8547.7, 8547.10, and 8547.11, improper governmental activity includes any activity by the University of California or by an employee, including an officer or faculty member, who otherwise meets the criteria of this subdivision. For purposes of Sections 8547.4, 8547.5, and 8547.13, improper governmental activity includes any activity by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts, or by an employee thereof, who otherwise meets the criteria of this subdivision.(d) Person means an individual, corporation, trust, association, a state or local government, or an agency or instrumentality of any of the foregoing.(e) 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 the California State Auditors Office alleging an improper governmental activity and any evidence delivered to the California State Auditors Office in support of the allegation. Protected disclosure also includes, but is not limited to, a complaint made to the Commission on Judicial Performance or to a Member of the Legislature, the Legislature, or any subdivision thereof.(f) State agency is defined by Section 11000. State agency includes the University of California for purposes of Sections 8547.5 to 8547.7, inclusive, and the California State University for purposes of Sections 8547.3 to 8547.7, inclusive. Sections 8547.3 to 8547.7, inclusive, shall apply to the Supreme Court, the courts of appeal, the superior courts, and the Administrative Office of the Courts in the same manner as they apply to a state agency. | |
| 84 | + | SECTION 1. Section 8547.2 of the Government Code is amended to read:8547.2. For the purposes of this article, the following terms have the following meanings:(a) Employee means an individual appointed by the Governor, or employed or holding office in a state agency as defined by Section 11000, including, for purposes of Sections 8547.3 to 8547.7, inclusive, an employee of the California State University, or an individual appointed by the Legislature to a state board or commission and who is not a Member or employee of the Legislature. In addition, employee means a person employed by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts for the purposes of Sections 8547.3 to 8547.7, inclusive, and Section 8547.13, except for those provisions of Section 8547.4 concerning notice of adverse action and the State Personnel Board. Employee includes a former employee who met the criteria of this subdivision during his or her their employment.(b) 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) Improper governmental activity means an activity by a state agency or by an employee that is undertaken in the performance of the employees duties, undertaken inside a state office, or, if undertaken outside a state office by the employee, directly relates to state government, whether or not that activity is within the scope of his or her their employment, and that (1) is in violation of any 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 duty, (2) is in violation of an Executive order of the Governor, a California Rule of Court, or any policy or procedure mandated by the State Administrative Manual or State Contracting Manual, or (3) is economically wasteful, involves gross misconduct, incompetency, or inefficiency. For purposes of Sections 8547.4, 8547.5, 8547.7, 8547.10, and 8547.11, improper governmental activity includes any activity by the University of California or by an employee, including an officer or faculty member, who otherwise meets the criteria of this subdivision. For purposes of Sections 8547.4, 8547.5, and 8547.13, improper governmental activity includes any activity by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts, or by an employee thereof, who otherwise meets the criteria of this subdivision.(d) Person means an individual, corporation, trust, association, a state or local government, or an agency or instrumentality of any of the foregoing.(e) 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 the California State Auditors Office alleging an improper governmental activity and any evidence delivered to the California State Auditors Office in support of the allegation. Protected disclosure also includes, but is not limited to, a complaint made to the Commission on Judicial Performance. Performance or to a Member of the Legislature, the Legislature, or any subdivision thereof.(f) State agency is defined by Section 11000. State agency includes the University of California for purposes of Sections 8547.5 to 8547.7, inclusive, and the California State University for purposes of Sections 8547.3 to 8547.7, inclusive. Sections 8547.3 to 8547.7, inclusive, shall apply to the Supreme Court, the courts of appeal, the superior courts, and the Administrative Office of the Courts in the same manner as they apply to a state agency. | |
| 68 | 85 | ||
| 69 | 86 | SECTION 1. Section 8547.2 of the Government Code is amended to read: | |
| 70 | 87 | ||
| 71 | 88 | ### SECTION 1. | |
| 72 | 89 | ||
| 73 | - | 8547.2. For the purposes of this article, the following terms have the following meanings:(a) Employee means an individual appointed by the Governor, or employed or holding office in a state agency as defined by Section 11000, including, for purposes of Sections 8547.3 to 8547.7, inclusive, an employee of the California State University, or an individual appointed by the Legislature to a state board or commission and who is not a Member or employee of the Legislature. In addition, employee means a person employed by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts for the purposes of Sections 8547.3 to 8547.7, inclusive, and Section 8547.13, except for those provisions of Section 8547.4 concerning notice of adverse action and the State Personnel Board. Employee includes a former employee who met the criteria of this subdivision during their employment.(b) 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) Improper governmental activity means an activity by a state agency or by an employee that is undertaken in the performance of the employees duties, undertaken inside a state office, or, if undertaken outside a state office by the employee, directly relates to state government, whether or not that activity is within the scope of their employment, and that (1) is in violation of any 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 duty, (2) is in violation of an Executive order of the Governor, a California Rule of Court, or any policy or procedure mandated by the State Administrative Manual or State Contracting Manual, or (3) is economically wasteful, involves gross misconduct, incompetency, or inefficiency. For purposes of Sections 8547.4, 8547.5, 8547.7, 8547.10, and 8547.11, improper governmental activity includes any activity by the University of California or by an employee, including an officer or faculty member, who otherwise meets the criteria of this subdivision. For purposes of Sections 8547.4, 8547.5, and 8547.13, improper governmental activity includes any activity by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts, or by an employee thereof, who otherwise meets the criteria of this subdivision.(d) Person means an individual, corporation, trust, association, a state or local government, or an agency or instrumentality of any of the foregoing.(e) 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 the California State Auditors Office alleging an improper governmental activity and any evidence delivered to the California State Auditors Office in support of the allegation. Protected disclosure also includes, but is not limited to, a complaint made to the Commission on Judicial Performance or to a Member of the Legislature, the Legislature, or any subdivision thereof.(f) State agency is defined by Section 11000. State agency includes the University of California for purposes of Sections 8547.5 to 8547.7, inclusive, and the California State University for purposes of Sections 8547.3 to 8547.7, inclusive. Sections 8547.3 to 8547.7, inclusive, shall apply to the Supreme Court, the courts of appeal, the superior courts, and the Administrative Office of the Courts in the same manner as they apply to a state agency. | |
| 90 | + | 8547.2. For the purposes of this article, the following terms have the following meanings:(a) Employee means an individual appointed by the Governor, or employed or holding office in a state agency as defined by Section 11000, including, for purposes of Sections 8547.3 to 8547.7, inclusive, an employee of the California State University, or an individual appointed by the Legislature to a state board or commission and who is not a Member or employee of the Legislature. In addition, employee means a person employed by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts for the purposes of Sections 8547.3 to 8547.7, inclusive, and Section 8547.13, except for those provisions of Section 8547.4 concerning notice of adverse action and the State Personnel Board. Employee includes a former employee who met the criteria of this subdivision during his or her their employment.(b) 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) Improper governmental activity means an activity by a state agency or by an employee that is undertaken in the performance of the employees duties, undertaken inside a state office, or, if undertaken outside a state office by the employee, directly relates to state government, whether or not that activity is within the scope of his or her their employment, and that (1) is in violation of any 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 duty, (2) is in violation of an Executive order of the Governor, a California Rule of Court, or any policy or procedure mandated by the State Administrative Manual or State Contracting Manual, or (3) is economically wasteful, involves gross misconduct, incompetency, or inefficiency. For purposes of Sections 8547.4, 8547.5, 8547.7, 8547.10, and 8547.11, improper governmental activity includes any activity by the University of California or by an employee, including an officer or faculty member, who otherwise meets the criteria of this subdivision. For purposes of Sections 8547.4, 8547.5, and 8547.13, improper governmental activity includes any activity by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts, or by an employee thereof, who otherwise meets the criteria of this subdivision.(d) Person means an individual, corporation, trust, association, a state or local government, or an agency or instrumentality of any of the foregoing.(e) 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 the California State Auditors Office alleging an improper governmental activity and any evidence delivered to the California State Auditors Office in support of the allegation. Protected disclosure also includes, but is not limited to, a complaint made to the Commission on Judicial Performance. Performance or to a Member of the Legislature, the Legislature, or any subdivision thereof.(f) State agency is defined by Section 11000. State agency includes the University of California for purposes of Sections 8547.5 to 8547.7, inclusive, and the California State University for purposes of Sections 8547.3 to 8547.7, inclusive. Sections 8547.3 to 8547.7, inclusive, shall apply to the Supreme Court, the courts of appeal, the superior courts, and the Administrative Office of the Courts in the same manner as they apply to a state agency. | |
| 74 | 91 | ||
| 75 | - | 8547.2. For the purposes of this article, the following terms have the following meanings:(a) Employee means an individual appointed by the Governor, or employed or holding office in a state agency as defined by Section 11000, including, for purposes of Sections 8547.3 to 8547.7, inclusive, an employee of the California State University, or an individual appointed by the Legislature to a state board or commission and who is not a Member or employee of the Legislature. In addition, employee means a person employed by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts for the purposes of Sections 8547.3 to 8547.7, inclusive, and Section 8547.13, except for those provisions of Section 8547.4 concerning notice of adverse action and the State Personnel Board. Employee includes a former employee who met the criteria of this subdivision during their employment.(b) 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) Improper governmental activity means an activity by a state agency or by an employee that is undertaken in the performance of the employees duties, undertaken inside a state office, or, if undertaken outside a state office by the employee, directly relates to state government, whether or not that activity is within the scope of their employment, and that (1) is in violation of any 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 duty, (2) is in violation of an Executive order of the Governor, a California Rule of Court, or any policy or procedure mandated by the State Administrative Manual or State Contracting Manual, or (3) is economically wasteful, involves gross misconduct, incompetency, or inefficiency. For purposes of Sections 8547.4, 8547.5, 8547.7, 8547.10, and 8547.11, improper governmental activity includes any activity by the University of California or by an employee, including an officer or faculty member, who otherwise meets the criteria of this subdivision. For purposes of Sections 8547.4, 8547.5, and 8547.13, improper governmental activity includes any activity by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts, or by an employee thereof, who otherwise meets the criteria of this subdivision.(d) Person means an individual, corporation, trust, association, a state or local government, or an agency or instrumentality of any of the foregoing.(e) 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 the California State Auditors Office alleging an improper governmental activity and any evidence delivered to the California State Auditors Office in support of the allegation. Protected disclosure also includes, but is not limited to, a complaint made to the Commission on Judicial Performance or to a Member of the Legislature, the Legislature, or any subdivision thereof.(f) State agency is defined by Section 11000. State agency includes the University of California for purposes of Sections 8547.5 to 8547.7, inclusive, and the California State University for purposes of Sections 8547.3 to 8547.7, inclusive. Sections 8547.3 to 8547.7, inclusive, shall apply to the Supreme Court, the courts of appeal, the superior courts, and the Administrative Office of the Courts in the same manner as they apply to a state agency. | |
| 92 | + | 8547.2. For the purposes of this article, the following terms have the following meanings:(a) Employee means an individual appointed by the Governor, or employed or holding office in a state agency as defined by Section 11000, including, for purposes of Sections 8547.3 to 8547.7, inclusive, an employee of the California State University, or an individual appointed by the Legislature to a state board or commission and who is not a Member or employee of the Legislature. In addition, employee means a person employed by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts for the purposes of Sections 8547.3 to 8547.7, inclusive, and Section 8547.13, except for those provisions of Section 8547.4 concerning notice of adverse action and the State Personnel Board. Employee includes a former employee who met the criteria of this subdivision during his or her their employment.(b) 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) Improper governmental activity means an activity by a state agency or by an employee that is undertaken in the performance of the employees duties, undertaken inside a state office, or, if undertaken outside a state office by the employee, directly relates to state government, whether or not that activity is within the scope of his or her their employment, and that (1) is in violation of any 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 duty, (2) is in violation of an Executive order of the Governor, a California Rule of Court, or any policy or procedure mandated by the State Administrative Manual or State Contracting Manual, or (3) is economically wasteful, involves gross misconduct, incompetency, or inefficiency. For purposes of Sections 8547.4, 8547.5, 8547.7, 8547.10, and 8547.11, improper governmental activity includes any activity by the University of California or by an employee, including an officer or faculty member, who otherwise meets the criteria of this subdivision. For purposes of Sections 8547.4, 8547.5, and 8547.13, improper governmental activity includes any activity by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts, or by an employee thereof, who otherwise meets the criteria of this subdivision.(d) Person means an individual, corporation, trust, association, a state or local government, or an agency or instrumentality of any of the foregoing.(e) 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 the California State Auditors Office alleging an improper governmental activity and any evidence delivered to the California State Auditors Office in support of the allegation. Protected disclosure also includes, but is not limited to, a complaint made to the Commission on Judicial Performance. Performance or to a Member of the Legislature, the Legislature, or any subdivision thereof.(f) State agency is defined by Section 11000. State agency includes the University of California for purposes of Sections 8547.5 to 8547.7, inclusive, and the California State University for purposes of Sections 8547.3 to 8547.7, inclusive. Sections 8547.3 to 8547.7, inclusive, shall apply to the Supreme Court, the courts of appeal, the superior courts, and the Administrative Office of the Courts in the same manner as they apply to a state agency. | |
| 76 | 93 | ||
| 77 | - | 8547.2. For the purposes of this article, the following terms have the following meanings:(a) Employee means an individual appointed by the Governor, or employed or holding office in a state agency as defined by Section 11000, including, for purposes of Sections 8547.3 to 8547.7, inclusive, an employee of the California State University, or an individual appointed by the Legislature to a state board or commission and who is not a Member or employee of the Legislature. In addition, employee means a person employed by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts for the purposes of Sections 8547.3 to 8547.7, inclusive, and Section 8547.13, except for those provisions of Section 8547.4 concerning notice of adverse action and the State Personnel Board. Employee includes a former employee who met the criteria of this subdivision during their employment.(b) 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) Improper governmental activity means an activity by a state agency or by an employee that is undertaken in the performance of the employees duties, undertaken inside a state office, or, if undertaken outside a state office by the employee, directly relates to state government, whether or not that activity is within the scope of their employment, and that (1) is in violation of any 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 duty, (2) is in violation of an Executive order of the Governor, a California Rule of Court, or any policy or procedure mandated by the State Administrative Manual or State Contracting Manual, or (3) is economically wasteful, involves gross misconduct, incompetency, or inefficiency. For purposes of Sections 8547.4, 8547.5, 8547.7, 8547.10, and 8547.11, improper governmental activity includes any activity by the University of California or by an employee, including an officer or faculty member, who otherwise meets the criteria of this subdivision. For purposes of Sections 8547.4, 8547.5, and 8547.13, improper governmental activity includes any activity by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts, or by an employee thereof, who otherwise meets the criteria of this subdivision.(d) Person means an individual, corporation, trust, association, a state or local government, or an agency or instrumentality of any of the foregoing.(e) 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 the California State Auditors Office alleging an improper governmental activity and any evidence delivered to the California State Auditors Office in support of the allegation. Protected disclosure also includes, but is not limited to, a complaint made to the Commission on Judicial Performance or to a Member of the Legislature, the Legislature, or any subdivision thereof.(f) State agency is defined by Section 11000. State agency includes the University of California for purposes of Sections 8547.5 to 8547.7, inclusive, and the California State University for purposes of Sections 8547.3 to 8547.7, inclusive. Sections 8547.3 to 8547.7, inclusive, shall apply to the Supreme Court, the courts of appeal, the superior courts, and the Administrative Office of the Courts in the same manner as they apply to a state agency. | |
| 94 | + | 8547.2. For the purposes of this article, the following terms have the following meanings:(a) Employee means an individual appointed by the Governor, or employed or holding office in a state agency as defined by Section 11000, including, for purposes of Sections 8547.3 to 8547.7, inclusive, an employee of the California State University, or an individual appointed by the Legislature to a state board or commission and who is not a Member or employee of the Legislature. In addition, employee means a person employed by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts for the purposes of Sections 8547.3 to 8547.7, inclusive, and Section 8547.13, except for those provisions of Section 8547.4 concerning notice of adverse action and the State Personnel Board. Employee includes a former employee who met the criteria of this subdivision during his or her their employment.(b) 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) Improper governmental activity means an activity by a state agency or by an employee that is undertaken in the performance of the employees duties, undertaken inside a state office, or, if undertaken outside a state office by the employee, directly relates to state government, whether or not that activity is within the scope of his or her their employment, and that (1) is in violation of any 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 duty, (2) is in violation of an Executive order of the Governor, a California Rule of Court, or any policy or procedure mandated by the State Administrative Manual or State Contracting Manual, or (3) is economically wasteful, involves gross misconduct, incompetency, or inefficiency. For purposes of Sections 8547.4, 8547.5, 8547.7, 8547.10, and 8547.11, improper governmental activity includes any activity by the University of California or by an employee, including an officer or faculty member, who otherwise meets the criteria of this subdivision. For purposes of Sections 8547.4, 8547.5, and 8547.13, improper governmental activity includes any activity by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts, or by an employee thereof, who otherwise meets the criteria of this subdivision.(d) Person means an individual, corporation, trust, association, a state or local government, or an agency or instrumentality of any of the foregoing.(e) 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 the California State Auditors Office alleging an improper governmental activity and any evidence delivered to the California State Auditors Office in support of the allegation. Protected disclosure also includes, but is not limited to, a complaint made to the Commission on Judicial Performance. Performance or to a Member of the Legislature, the Legislature, or any subdivision thereof.(f) State agency is defined by Section 11000. State agency includes the University of California for purposes of Sections 8547.5 to 8547.7, inclusive, and the California State University for purposes of Sections 8547.3 to 8547.7, inclusive. Sections 8547.3 to 8547.7, inclusive, shall apply to the Supreme Court, the courts of appeal, the superior courts, and the Administrative Office of the Courts in the same manner as they apply to a state agency. | |
| 78 | 95 | ||
| 79 | 96 | ||
| 80 | 97 | ||
| 81 | 98 | 8547.2. For the purposes of this article, the following terms have the following meanings: | |
| 82 | 99 | ||
| 83 | - | (a) Employee means an individual appointed by the Governor, or employed or holding office in a state agency as defined by Section 11000, including, for purposes of Sections 8547.3 to 8547.7, inclusive, an employee of the California State University, or an individual appointed by the Legislature to a state board or commission and who is not a Member or employee of the Legislature. In addition, employee means a person employed by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts for the purposes of Sections 8547.3 to 8547.7, inclusive, and Section 8547.13, except for those provisions of Section 8547.4 concerning notice of adverse action and the State Personnel Board. Employee includes a former employee who met the criteria of this subdivision during their employment. | |
| 100 | + | (a) Employee means an individual appointed by the Governor, or employed or holding office in a state agency as defined by Section 11000, including, for purposes of Sections 8547.3 to 8547.7, inclusive, an employee of the California State University, or an individual appointed by the Legislature to a state board or commission and who is not a Member or employee of the Legislature. In addition, employee means a person employed by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts for the purposes of Sections 8547.3 to 8547.7, inclusive, and Section 8547.13, except for those provisions of Section 8547.4 concerning notice of adverse action and the State Personnel Board. Employee includes a former employee who met the criteria of this subdivision during his or her their employment. | |
| 84 | 101 | ||
| 85 | 102 | (b) 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. | |
| 86 | 103 | ||
| 87 | - | (c) Improper governmental activity means an activity by a state agency or by an employee that is undertaken in the performance of the employees duties, undertaken inside a state office, or, if undertaken outside a state office by the employee, directly relates to state government, whether or not that activity is within the scope of their employment, and that (1) is in violation of any 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 duty, (2) is in violation of an Executive order of the Governor, a California Rule of Court, or any policy or procedure mandated by the State Administrative Manual or State Contracting Manual, or (3) is economically wasteful, involves gross misconduct, incompetency, or inefficiency. For purposes of Sections 8547.4, 8547.5, 8547.7, 8547.10, and 8547.11, improper governmental activity includes any activity by the University of California or by an employee, including an officer or faculty member, who otherwise meets the criteria of this subdivision. For purposes of Sections 8547.4, 8547.5, and 8547.13, improper governmental activity includes any activity by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts, or by an employee thereof, who otherwise meets the criteria of this subdivision. | |
| 104 | + | (c) Improper governmental activity means an activity by a state agency or by an employee that is undertaken in the performance of the employees duties, undertaken inside a state office, or, if undertaken outside a state office by the employee, directly relates to state government, whether or not that activity is within the scope of his or her their employment, and that (1) is in violation of any 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 duty, (2) is in violation of an Executive order of the Governor, a California Rule of Court, or any policy or procedure mandated by the State Administrative Manual or State Contracting Manual, or (3) is economically wasteful, involves gross misconduct, incompetency, or inefficiency. For purposes of Sections 8547.4, 8547.5, 8547.7, 8547.10, and 8547.11, improper governmental activity includes any activity by the University of California or by an employee, including an officer or faculty member, who otherwise meets the criteria of this subdivision. For purposes of Sections 8547.4, 8547.5, and 8547.13, improper governmental activity includes any activity by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts, or by an employee thereof, who otherwise meets the criteria of this subdivision. | |
| 88 | 105 | ||
| 89 | 106 | (d) Person means an individual, corporation, trust, association, a state or local government, or an agency or instrumentality of any of the foregoing. | |
| 90 | 107 | ||
| 91 | - | (e) 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 the California State Auditors Office alleging an improper governmental activity and any evidence delivered to the California State Auditors Office in support of the allegation. Protected disclosure also includes, but is not limited to, a complaint made to the Commission on Judicial Performance or to a Member of the Legislature, the Legislature, or any subdivision thereof. | |
| 108 | + | (e) 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 the California State Auditors Office alleging an improper governmental activity and any evidence delivered to the California State Auditors Office in support of the allegation. Protected disclosure also includes, but is not limited to, a complaint made to the Commission on Judicial Performance. Performance or to a Member of the Legislature, the Legislature, or any subdivision thereof. | |
| 92 | 109 | ||
| 93 | 110 | (f) State agency is defined by Section 11000. State agency includes the University of California for purposes of Sections 8547.5 to 8547.7, inclusive, and the California State University for purposes of Sections 8547.3 to 8547.7, inclusive. Sections 8547.3 to 8547.7, inclusive, shall apply to the Supreme Court, the courts of appeal, the superior courts, and the Administrative Office of the Courts in the same manner as they apply to a state agency. | |
| 94 | 111 | ||
| 95 | - | SEC. 2. | |
| 112 | + | SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB 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 XIIIB of the California Constitution. | |
| 96 | 113 | ||
| 97 | - | SEC. 2. Section 9149.24 is added to the Government Code, to read: | |
| 114 | + | SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB 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 XIIIB of the California Constitution. | |
| 115 | + | ||
| 116 | + | SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB 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 XIIIB of the California Constitution. | |
| 98 | 117 | ||
| 99 | 118 | ### SEC. 2. | |
| 100 | 119 | ||
| 101 | - | 9149.24. A committee may investigate and report on improper governmental activities, or may refer the improper governmental activity to the State Auditor for investigation pursuant to Article 3 (commencing with Section 8547) of Chapter 6.5 of Division 1. If, after investigating, the committee finds that an employee may have engaged or participated in improper governmental activities, the committee may prepare an investigative report and send a copy of the investigative report to the employees appointing power. | |
| 102 | - | ||
| 103 | - | 9149.24. A committee may investigate and report on improper governmental activities, or may refer the improper governmental activity to the State Auditor for investigation pursuant to Article 3 (commencing with Section 8547) of Chapter 6.5 of Division 1. If, after investigating, the committee finds that an employee may have engaged or participated in improper governmental activities, the committee may prepare an investigative report and send a copy of the investigative report to the employees appointing power. | |
| 104 | - | ||
| 105 | - | 9149.24. A committee may investigate and report on improper governmental activities, or may refer the improper governmental activity to the State Auditor for investigation pursuant to Article 3 (commencing with Section 8547) of Chapter 6.5 of Division 1. If, after investigating, the committee finds that an employee may have engaged or participated in improper governmental activities, the committee may prepare an investigative report and send a copy of the investigative report to the employees appointing power. | |
| 106 | 120 | ||
| 107 | 121 | ||
| 108 | 122 | ||
| 109 | - | 9149.24. A committee may investigate and report on improper governmental activities, or may refer the improper governmental activity to the State Auditor for investigation pursuant to Article 3 (commencing with Section 8547) of Chapter 6.5 of Division 1. If, after investigating, the committee finds that an employee may have engaged or participated in improper governmental activities, the committee may prepare an investigative report and send a copy of the investigative report to the employees appointing power. | |
| 110 | 123 | ||
| 111 | - | SEC. 3. Section 9149.25 is added to the Government Code, to read:9149.25. (a) A committee may request that persons submitting an allegation provide their name and contact information and provide the names and contact information for any persons who could help to substantiate the claim. However, the committee shall not require persons submitting an allegation to provide their name or contact information.(b) Upon receiving specific information that any employee or state agency has engaged in an improper governmental activity, the committee 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 committee may make the disclosure to a law enforcement agency that is conducting a criminal investigation, or to the State Auditor for investigation pursuant to Article 3 (commencing with Section 8547) of Chapter 6.5 of Division 1. | |
| 112 | - | ||
| 113 | - | SEC. 3. Section 9149.25 is added to the Government Code, to read: | |
| 114 | - | ||
| 115 | - | ### SEC. 3. | |
| 116 | - | ||
| 117 | - | 9149.25. (a) A committee may request that persons submitting an allegation provide their name and contact information and provide the names and contact information for any persons who could help to substantiate the claim. However, the committee shall not require persons submitting an allegation to provide their name or contact information.(b) Upon receiving specific information that any employee or state agency has engaged in an improper governmental activity, the committee 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 committee may make the disclosure to a law enforcement agency that is conducting a criminal investigation, or to the State Auditor for investigation pursuant to Article 3 (commencing with Section 8547) of Chapter 6.5 of Division 1. | |
| 118 | - | ||
| 119 | - | 9149.25. (a) A committee may request that persons submitting an allegation provide their name and contact information and provide the names and contact information for any persons who could help to substantiate the claim. However, the committee shall not require persons submitting an allegation to provide their name or contact information.(b) Upon receiving specific information that any employee or state agency has engaged in an improper governmental activity, the committee 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 committee may make the disclosure to a law enforcement agency that is conducting a criminal investigation, or to the State Auditor for investigation pursuant to Article 3 (commencing with Section 8547) of Chapter 6.5 of Division 1. | |
| 120 | - | ||
| 121 | - | 9149.25. (a) A committee may request that persons submitting an allegation provide their name and contact information and provide the names and contact information for any persons who could help to substantiate the claim. However, the committee shall not require persons submitting an allegation to provide their name or contact information.(b) Upon receiving specific information that any employee or state agency has engaged in an improper governmental activity, the committee 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 committee may make the disclosure to a law enforcement agency that is conducting a criminal investigation, or to the State Auditor for investigation pursuant to Article 3 (commencing with Section 8547) of Chapter 6.5 of Division 1. | |
| 124 | + | For the purposes of this article, the following words have the following meanings: | |
| 122 | 125 | ||
| 123 | 126 | ||
| 124 | 127 | ||
| 125 | - | 9149.25. (a) A committee may request that persons submitting an allegation provide their name and contact information and provide the names and contact information for any persons who could help to substantiate the claim. However, the committee shall not require persons submitting an allegation to provide their name or contact information. | |
| 128 | + | (a)Committee means an investigating committee of the Legislature. | |
| 129 | + | ||
| 130 | + | ||
| 131 | + | ||
| 132 | + | (b)(1)Employee means 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 public entity as defined by Section 7260, or any agency of local government, as defined in subdivision (d) of Section 8 of Article XIII B of the California Constitution. | |
| 133 | + | ||
| 134 | + | ||
| 135 | + | ||
| 136 | + | (2)Employee also means an individual appointed by the Legislature to a state board or commission and who is not a member or employee of the Legislature, and a person employed by the Supreme Court, a court of appeal, a superior court, or the Judicial Council. | |
| 137 | + | ||
| 138 | + | ||
| 139 | + | ||
| 140 | + | (3)Employee includes a former employee who met the criteria of this subdivision during the persons employment. | |
| 141 | + | ||
| 142 | + | ||
| 143 | + | ||
| 144 | + | (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. | |
| 145 | + | ||
| 146 | + | ||
| 147 | + | ||
| 148 | + | (d)Improper governmental activity means an activity by a governmental agency or by an employee that is undertaken in the performance of the employees official duties, whether or not that action is within the scope of their employment, and that (1) is in violation of 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 duty, (2) is in violation of an Executive Order of the Governor, a California Rule of Court, or any policy or procedure mandated by the State Administrative Manual or the State Contracting Manual, or (3) is economically wasteful, or involves gross misconduct, incompetency, or inefficiency. For purposes of Sections 9149.24, 9149.25, 9149.27, 9149.29.0, and 9149.29.1, improper governmental activity includes any activity by the University of California or by an employee, including an officer or faculty member, who otherwise meets the criteria of this subdivision. For purposes of Sections 9149.24, 9149.25, and 9129.29.3, improper governmental activity includes any activity by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts, or by an employee thereof, who otherwise meets the criteria of this subdivision. | |
| 149 | + | ||
| 150 | + | ||
| 151 | + | ||
| 152 | + | (e)Person means an individual, corporation, trust, association, an state or local government, or an agency or instrumentality of any of the foregoing. | |
| 153 | + | ||
| 154 | + | ||
| 155 | + | ||
| 156 | + | (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 committee alleging an improper governmental activity and any evidence delivered to a committee in support of the allegation. Protected disclosure also includes, but is not limited to, a complaint made to the Commission on Judicial Performance. | |
| 157 | + | ||
| 158 | + | ||
| 159 | + | ||
| 160 | + | (g)State agency, except as provided in this subdivision, has the same meaning as defined by Section 11000. State agency includes the University of California for purposes of Sections 9149.25 to 9149.27, inclusive, and the California State University for purposes of Sections 9149.23 to 9149.27, inclusive. Sections 9149.23 to 9149.27, inclusive, shall apply to the Supreme Court, the courts of appeal, the superior courts, and the Administrative Office of the Courts in the same manner as they apply to a state agency. | |
| 161 | + | ||
| 162 | + | ||
| 163 | + | ||
| 164 | + | (h)Use of official authority or influence includes promising to confer, or conferring, any benefit; effecting, or threatening to effect, any reprisal; or 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. | |
| 165 | + | ||
| 166 | + | ||
| 167 | + | ||
| 168 | + | ||
| 169 | + | ||
| 170 | + | ||
| 171 | + | ||
| 172 | + | (a)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 any person for the purpose of interfering with the rights conferred pursuant to this article. | |
| 173 | + | ||
| 174 | + | ||
| 175 | + | ||
| 176 | + | (b)Any employee who violates subdivision (a) may be liable in an action for civil damages brought against the employee by the offended party. | |
| 177 | + | ||
| 178 | + | ||
| 179 | + | ||
| 180 | + | (c)Nothing in this section shall be construed to authorize an individual to disclose information otherwise prohibited by or under law. | |
| 181 | + | ||
| 182 | + | ||
| 183 | + | ||
| 184 | + | (d)Nothing in this section shall be construed to abrogate or limit any other theory of liability or any other remedy that is otherwise available at law. | |
| 185 | + | ||
| 186 | + | ||
| 187 | + | ||
| 188 | + | ||
| 189 | + | ||
| 190 | + | ||
| 191 | + | ||
| 192 | + | A committee may investigate and report on improper governmental activities, or may refer the improper governmental activity to the State Auditor for investigation pursuant to Article 3 (commencing with Section 8547) of Chapter 6.5 of Division 1. If, after investigating, the committee finds that an employee may have engaged or participated in improper governmental activities, the committee may prepare an investigative report and send a copy of the investigative report to the employees appointing power. | |
| 193 | + | ||
| 194 | + | ||
| 195 | + | ||
| 196 | + | ||
| 197 | + | ||
| 198 | + | ||
| 199 | + | ||
| 200 | + | (a)A committee may request that persons submitting an allegation provide their name and contact information and provide the names and contact information for any persons who could help to substantiate the claim. However, the committee shall not require persons submitting an allegation to provide their name or contact information. | |
| 201 | + | ||
| 202 | + | ||
| 126 | 203 | ||
| 127 | 204 | (b)Upon receiving specific information that any employee or state agency has engaged in an improper governmental activity, the committee 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 committee may make the disclosure to a law enforcement agency that is conducting a criminal investigation, or to the State Auditor for investigation pursuant to Article 3 (commencing with Section 8547) of Chapter 6.5 of Division 1. | |
| 128 | 205 | ||
| 129 | - | SEC. 4. Section 9149.26 is added to the Government Code, to read:9149.26. A committee may request the assistance of any state department, agency, or employee in evaluating an allegation or conducting any investigation of an improper governmental activity as authorized by this article. In response to a request for assistance from the committee, that state department, agency, or employee shall provide the assistance, including, but not limited to, providing access to documents or other information in a timely manner. If an investigation conducted by the committee involves access to confidential academic peer review records of University of California academic personnel, these records shall be provided in a form consistent with university policy effective on August 1, 1992. Information obtained from the committee by any department, agency, or employee as a result of the committees request for assistance, nor any information obtained thereafter as a result of further investigation, shall not be divulged or made known to any person without the prior approval of the committee. | |
| 130 | - | ||
| 131 | - | SEC. 4. Section 9149.26 is added to the Government Code, to read: | |
| 132 | - | ||
| 133 | - | ### SEC. 4. | |
| 134 | - | ||
| 135 | - | 9149.26. A committee may request the assistance of any state department, agency, or employee in evaluating an allegation or conducting any investigation of an improper governmental activity as authorized by this article. In response to a request for assistance from the committee, that state department, agency, or employee shall provide the assistance, including, but not limited to, providing access to documents or other information in a timely manner. If an investigation conducted by the committee involves access to confidential academic peer review records of University of California academic personnel, these records shall be provided in a form consistent with university policy effective on August 1, 1992. Information obtained from the committee by any department, agency, or employee as a result of the committees request for assistance, nor any information obtained thereafter as a result of further investigation, shall not be divulged or made known to any person without the prior approval of the committee. | |
| 136 | - | ||
| 137 | - | 9149.26. A committee may request the assistance of any state department, agency, or employee in evaluating an allegation or conducting any investigation of an improper governmental activity as authorized by this article. In response to a request for assistance from the committee, that state department, agency, or employee shall provide the assistance, including, but not limited to, providing access to documents or other information in a timely manner. If an investigation conducted by the committee involves access to confidential academic peer review records of University of California academic personnel, these records shall be provided in a form consistent with university policy effective on August 1, 1992. Information obtained from the committee by any department, agency, or employee as a result of the committees request for assistance, nor any information obtained thereafter as a result of further investigation, shall not be divulged or made known to any person without the prior approval of the committee. | |
| 138 | - | ||
| 139 | - | 9149.26. A committee may request the assistance of any state department, agency, or employee in evaluating an allegation or conducting any investigation of an improper governmental activity as authorized by this article. In response to a request for assistance from the committee, that state department, agency, or employee shall provide the assistance, including, but not limited to, providing access to documents or other information in a timely manner. If an investigation conducted by the committee involves access to confidential academic peer review records of University of California academic personnel, these records shall be provided in a form consistent with university policy effective on August 1, 1992. Information obtained from the committee by any department, agency, or employee as a result of the committees request for assistance, nor any information obtained thereafter as a result of further investigation, shall not be divulged or made known to any person without the prior approval of the committee. | |
| 140 | 206 | ||
| 141 | 207 | ||
| 142 | 208 | ||
| 143 | - | 9149.26. A committee may request the assistance of any state department, agency, or employee in evaluating an allegation or conducting any investigation of an improper governmental activity as authorized by this article. In response to a request for assistance from the committee, that state department, agency, or employee shall provide the assistance, including, but not limited to, providing access to documents or other information in a timely manner. If an investigation conducted by the committee involves access to confidential academic peer review records of University of California academic personnel, these records shall be provided in a form consistent with university policy effective on August 1, 1992. Information obtained from the committee by any department, agency, or employee as a result of the committees request for assistance, nor any information obtained thereafter as a result of further investigation, shall not be divulged or made known to any person without the prior approval of the committee. | |
| 144 | 209 | ||
| 145 | - | SEC. 2.SEC. 5. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB 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 XIIIB of the California Constitution. | |
| 146 | 210 | ||
| 147 | - | SEC. 2.SEC. 5. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB 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 XIIIB of the California Constitution. | |
| 148 | 211 | ||
| 149 | - | ||
| 212 | + | A committee may request the assistance of any state department, agency, or employee in evaluating an allegation or conducting any investigation of an improper governmental activity as authorized by this article. In response to a request for assistance from the committee, that state department, agency, or employee shall provide the assistance, including, but not limited to, providing access to documents or other information in a timely manner. If an investigation conducted by the committee involves access to confidential academic peer review records of University of California academic personnel, these records shall be provided in a form consistent with university policy effective on August 1, 1992. Information obtained from the committee by any department, agency, or employee as a result of the committees request for assistance, nor any information obtained thereafter as a result of further investigation, shall not be divulged or made known to any person without the prior approval of the committee. | |
| 150 | 213 | ||
| 151 | - | ### SEC. 2.SEC. 5. | |
| 152 | 214 | ||
| 153 | - | SEC. 6. The Legislature finds and declares that Section 4 of this act, which adds Section 9149.26 to the Government Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:In order to protect the identity of whistleblowers, it is necessary that information related to protected disclosures remain confidential. | |
| 154 | 215 | ||
| 155 | - | SEC. 6. The Legislature finds and declares that Section 4 of this act, which adds Section 9149.26 to the Government Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:In order to protect the identity of whistleblowers, it is necessary that information related to protected disclosures remain confidential. | |
| 156 | 216 | ||
| 157 | - | SEC. 6. The Legislature finds and declares that Section 4 of this act, which adds Section 9149.26 to the Government Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest: | |
| 158 | 217 | ||
| 159 | - | ### SEC. 6. | |
| 218 | + | ||
| 219 | + | ||
| 220 | + | A committee shall keep confidential every investigation, including, but not limited to, all investigative files and work product, except that the committee, whenever the chair determines it necessary to serve the interests of the state, and subject to the limitations of Section 9149.25, may issue a public report of an investigation that has substantiated an improper governmental activity, or may conduct a public hearing as part of the investigation, keeping confidential the identity of the employee or employees involved. In addition, subject to the limitations of Section 9149.25, the committee may release any findings or evidence supporting any findings resulting from an investigation conducted pursuant to this article whenever the committee determines it necessary to serve the interests of the state. | |
| 221 | + | ||
| 222 | + | ||
| 223 | + | ||
| 224 | + | ||
| 225 | + | ||
| 226 | + | ||
| 227 | + | ||
| 228 | + | (a)A state employee or applicant for state employment who files a written complaint with their 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. | |
| 229 | + | ||
| 230 | + | ||
| 231 | + | ||
| 232 | + | (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) 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. | |
| 233 | + | ||
| 234 | + | ||
| 235 | + | ||
| 236 | + | (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 them 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 attorneys 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 State Personnel Board pursuant to subdivision (a), and the board has issued, or failed to issue, findings pursuant to Section 19683. | |
| 237 | + | ||
| 238 | + | ||
| 239 | + | ||
| 240 | + | (d)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. | |
| 241 | + | ||
| 242 | + | ||
| 243 | + | ||
| 244 | + | (e)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. | |
| 245 | + | ||
| 246 | + | ||
| 247 | + | ||
| 248 | + | (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. | |
| 249 | + | ||
| 250 | + | ||
| 251 | + | ||
| 252 | + | ||
| 253 | + | ||
| 254 | + | ||
| 255 | + | ||
| 256 | + | Notwithstanding Section 19572, if the State Personnel Board determines that there is a reasonable basis for an alleged violation, or finds an actual violation of Section 9149.23 or 19683, it shall transmit a copy of the investigative report to the committee. All working papers pertaining to the investigative report shall be made available under subpoena in a civil action brought under Section 19683. | |
| 257 | + | ||
| 258 | + | ||
| 259 | + | ||
| 260 | + | ||
| 261 | + | ||
| 262 | + | ||
| 263 | + | ||
| 264 | + | (a)A University of California employee, including an officer or faculty member, or applicant for employment may file a written complaint with their supervisor or manager, or with any other university officer designated for that purpose by the regents, alleging actual or attempted acts of reprisal, retaliation, threats, coercion, or similar improper acts for having made a protected disclosure, 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 of reprisal complained about. | |
| 265 | + | ||
| 266 | + | ||
| 267 | + | ||
| 268 | + | (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) 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. | |
| 269 | + | ||
| 270 | + | ||
| 271 | + | ||
| 272 | + | (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 them 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 attorneys 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. | |
| 273 | + | ||
| 274 | + | ||
| 275 | + | ||
| 276 | + | (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. | |
| 277 | + | ||
| 278 | + | ||
| 279 | + | ||
| 280 | + | (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. | |
| 281 | + | ||
| 282 | + | ||
| 283 | + | ||
| 284 | + | (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. | |
| 285 | + | ||
| 286 | + | ||
| 287 | + | ||
| 288 | + | ||
| 289 | + | ||
| 290 | + | ||
| 291 | + | ||
| 292 | + | (a)A University of California employee, including an officer or faculty member, 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 any person for the purpose of interfering with the right of that person to disclose to a University of California official, designated for that purpose by the regents, or an investigating committee of the Legislature matters within the scope of this article. | |
| 293 | + | ||
| 294 | + | ||
| 295 | + | ||
| 296 | + | (b)For the purpose of subdivision (a), use of official authority or influence includes promising to confer, or conferring, any benefit; effecting, or threatening to effect, any reprisal; or 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. | |
| 297 | + | ||
| 298 | + | ||
| 299 | + | ||
| 300 | + | (c)Any employee who violates subdivision (a) may be liable in an action for civil damages brought against the employee by the offended party. | |
| 301 | + | ||
| 302 | + | ||
| 303 | + | ||
| 304 | + | (d)Nothing in this section shall be construed to authorize an individual to disclose information otherwise prohibited by or under law. | |
| 305 | + | ||
| 306 | + | ||
| 307 | + | ||
| 308 | + | ||
| 309 | + | ||
| 310 | + | ||
| 311 | + | ||
| 312 | + | (a)A California State University employee, including an officer or faculty member, or applicant for employment may file a written complaint with their supervisor or manager, or with any other university officer designated for that purpose by the trustees, alleging actual or attempted acts of reprisal, retaliation, threats, coercion, or similar improper acts for having made a protected disclosure, 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 of reprisal complained about. | |
| 313 | + | ||
| 314 | + | ||
| 315 | + | ||
| 316 | + | (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) 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. | |
| 317 | + | ||
| 318 | + | ||
| 319 | + | ||
| 320 | + | (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 them 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 attorneys 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. | |
| 321 | + | ||
| 322 | + | ||
| 323 | + | ||
| 324 | + | (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. | |
| 325 | + | ||
| 326 | + | ||
| 327 | + | ||
| 328 | + | (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. | |
| 329 | + | ||
| 330 | + | ||
| 331 | + | ||
| 332 | + | (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. | |
| 333 | + | ||
| 334 | + | ||
| 335 | + | ||
| 336 | + | (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. | |
| 337 | + | ||
| 338 | + | ||
| 339 | + | ||
| 340 | + | ||
| 341 | + | ||
| 342 | + | ||
| 343 | + | ||
| 344 | + | (a)As used in this section: | |
| 345 | + | ||
| 346 | + | ||
| 347 | + | ||
| 348 | + | (1)Agency means the Supreme Court, the courts of appeal, the superior courts, or the Judicial Council. | |
| 349 | + | ||
| 350 | + | ||
| 351 | + | ||
| 352 | + | (2)Employee means a person employed by the Supreme Court, a court of appeal, a superior court, or the Judicial Council. | |
| 353 | + | ||
| 354 | + | ||
| 355 | + | ||
| 356 | + | (b)An employee or applicant for employment who files a written complaint with 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 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 shall be filed within 12 months of the most recent act complained about. | |
| 357 | + | ||
| 358 | + | ||
| 359 | + | ||
| 360 | + | (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. | |
| 361 | + | ||
| 362 | + | ||
| 363 | + | ||
| 364 | + | (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) 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. | |
| 365 | + | ||
| 366 | + | ||
| 367 | + | ||
| 368 | + | (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 them 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 attorneys fees as provided by law. It is not a prerequisite for an action for damages for the injured party to first file a complaint pursuant to subdivision (b). | |
| 369 | + | ||
| 370 | + | ||
| 371 | + | ||
| 372 | + | (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. | |
| 373 | + | ||
| 374 | + | ||
| 375 | + | ||
| 376 | + | (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. | |
| 377 | + | ||
| 378 | + | ||
| 379 | + | ||
| 380 | + | (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. | |
| 381 | + | ||
| 382 | + | ||
| 383 | + | ||
| 384 | + | (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 an investigative committee of the Legislature matters within the scope of this article. For the purpose of this subdivision, use of official authority or influence includes all of the following: | |
| 385 | + | ||
| 386 | + | ||
| 387 | + | ||
| 388 | + | (1)Promising to confer, or conferring, any benefit. | |
| 389 | + | ||
| 390 | + | ||
| 391 | + | ||
| 392 | + | (2)Effecting, or threatening to effect, any reprisal. | |
| 393 | + | ||
| 394 | + | ||
| 395 | + | ||
| 396 | + | (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. | |
| 397 | + | ||
| 398 | + | ||
| 399 | + | ||
| 400 | + | (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. | |
| 401 | + | ||
| 402 | + | ||
| 403 | + | ||
| 404 | + | (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. | |
| 405 | + | ||
| 406 | + | ||
| 407 | + | ||
| 408 | + | ||
| 409 | + | ||
| 410 | + | ||
| 411 | + | ||
| 412 | + | 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). | |
| 413 | + | ||
| 414 | + | ||
| 415 | + | ||
| 416 | + | ||
| 417 | + | ||
| 418 | + | ||
| 419 | + | ||
| 420 | + | (a)The State Personnel Board shall initiate a hearing or investigation of a written complaint of conduct 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. 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. | |
| 421 | + | ||
| 422 | + | ||
| 423 | + | ||
| 424 | + | (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 boards normal rules governing appeals, hearings, investigations, and disciplinary proceedings. | |
| 425 | + | ||
| 426 | + | ||
| 427 | + | ||
| 428 | + | (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. | |
| 429 | + | ||
| 430 | + | ||
| 431 | + | ||
| 432 | + | (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 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 managers, supervisors, or employees official personnel records. | |
| 433 | + | ||
| 434 | + | ||
| 435 | + | ||
| 436 | + | (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 or 9149.23, the board shall notify the managers, supervisors, or employees 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. | |
| 437 | + | ||
| 438 | + | ||
| 439 | + | ||
| 440 | + | (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. | |
| 441 | + | ||
| 442 | + | ||
| 443 | + | ||
| 444 | + | ||
| 445 | + | ||
| 446 | + | 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. | |
| 447 | + | ||
| 448 | + | ||
| 449 | + | ||
| 450 | + | ||
| 451 | + | ||
| 452 | + | The Legislature finds and declares that Section 5 of this act, which adds Section 9149.26 to the Government Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest: | |
| 453 | + | ||
| 454 | + | ||
| 160 | 455 | ||
| 161 | 456 | In order to protect the identity of whistleblowers, it is necessary that information related to protected disclosures remain confidential. |