CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 31

Introduced by Assembly Member Rodriguez

December 05, 2016

An act to add Section 8547.14 to the Government Code, relating to whistleblowers.


LEGISLATIVE COUNSEL'S DIGEST


AB 31, as introduced, Rodriguez. Whistleblowers: California State Auditor.
Existing law creates the California State Auditor’s Office, which is independent of the executive branch and legislative control, to examine and report annually upon the financial statements prepared by the executive branch. Existing law exempts the California State Auditor from specific provisions of existing law relating to oversight by state control agencies, including specific provisions relating to employment, administration, contracting, fiscal matters, and the adoption of regulations.
Existing law, the California Whistleblower Protection Act, authorizes the California State Auditor to conduct an investigative audit upon receiving specific information that an employee or state agency has engaged in an improper governmental activity, as defined. The act requires the California State Auditor to establish a means of submitting allegations of improper governmental activity, and generally requires the California State Auditor to keep confidential every investigation, including all investigative files and work product. The act authorizes an employee or applicant for employment who files a written complaint alleging reprisal, retaliation, or similar prohibited acts to also file a copy of the written complaint with the State Personnel Board, together with a sworn statement that the complaint is true, under penalty of perjury. The act provides that any person who intentionally engages in acts of reprisal, retaliation, or similar prohibited acts against a state employee or applicant for state employment for having made a protected disclosure is subject to punishment for a misdemeanor, and shall be liable in an action for civil damages brought by the injured party.
This bill would amend the act to establish provisions specifically for an employee of the California State Auditor’s Office to file a written complaint alleging reprisal, retaliation, or similar prohibited acts with the employee’s supervisor or manager or with the Joint Committee on Rules. The bill would require the Joint Committee on Rules to administer its provisions and to investigate and report on improper governmental activities of the California State Auditor’s Office. The bill would require a complaint to be filed together with a sworn statement that the complaint is true, under penalty of perjury. By expanding the crime of perjury, this bill would impose a state-mandated local program. The bill would also establish a criminal penalty for intentionally engaging in prohibited acts under the bill’s provisions, thereby imposing a state-mandated local program. The bill would also provide for an action for civil damages.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 8547.14 is added to the Government Code, to read:

8547.14.
 (a) An employee of the California State Auditor’s Office, including, but not limited to, an officer or applicant for employment with the office, may file a written complaint with his or her supervisor or manager, or with the Joint Committee on Rules, 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 an employee of the California State Auditor’s Office, including, but not limited to, an officer 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 employee, including, but not limited to, an officer who intentionally engages in that conduct, shall also be subject to discipline.
(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 an employee of the California State Auditor’s Office, including an officer or applicant for employment for having made a protected disclosure, shall be liable in an action for damages brought against him or her by the injured party. Punitive damages may be awarded by the court where the acts of the offending party are proven to be malicious. Where liability has been established, the injured party shall also be entitled to reasonable attorney’s fees as provided by law. However, any action for damages shall not be available to the injured party unless the injured party has first filed a complaint with the Joint Committee on Rules pursuant to subdivision (a).
(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 employee, including an officer 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) The Joint Committee on Rules shall administer this section and shall investigate and report on improper governmental activities of the California State Auditor’s Office. If, after investigating, the Joint Committee on Rules finds that an employee may have engaged or participated in improper governmental activities, the Joint Committee on Rules shall prepare an investigative report and send a copy of the investigative report to the California State Auditor for the employee of the California State Auditor’s Office. Subject to the same limitations established in Section 8547.5, the Joint Committee on Rules may provide to the California State Auditor any evidence gathered during the investigation that, in the judgment of the Joint Committee on Rules, is necessary to support an adverse action or an action recommended in accordance with subdivision (a) of Section 8547.7. Within 60 days after receiving a copy of the investigative report of the Joint Committee on Rules, the California State Auditor shall either serve a notice of adverse action upon the employee who is the subject of the investigative report or set forth in writing his or her reasons for not taking adverse action. The California State Auditor shall file a copy of the notice of adverse action with the State Personnel Board in accordance with Section 19574, and shall submit a copy to the Joint Committee on Rules. If the California State Auditor does not take adverse action within 60 days of receiving a copy of the investigative report of the Joint Committee on Rules, he or she shall submit written reasons for not doing so to the Joint Committee on Rules and the State Personnel Board, and adverse action may be taken as provided in Section 19583.5. Any employee who is served with a notice of adverse action may appeal to the State Personnel Board in accordance with Section 19575.
(g) (1) The Joint Committee on Rules shall create the means for the submission of allegations of improper governmental activity by the California State Auditor’s Office both by transmission via mail or other carrier to a specified mailing address and electronic submission through an Internet Web site portal. The Joint Committee on Rules may request that a person submitting an allegation provide his or her name and contact information and provide the names and contact information for any persons who could help to substantiate the claim. However, the Joint Committee on Rules shall not require any person submitting an allegation to provide his or her name or contact information and shall clearly state on any Internet Web site of the committee that this information is not required in order to submit an allegation.
(2) Upon receiving specific information that the California State Auditor’s Office or any employee of that office has engaged in an improper governmental activity, the Joint Committee on Rules 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 Joint Committee on Rules may make the disclosure to a law enforcement agency that is conducting a criminal investigation.
(h) Nothing in this section 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. 2.

 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.