Bill Text: CA SB947 | 2021-2022 | Regular Session | Amended
Bill Title: Whistleblowers: private entities awarded large state contracts.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Engrossed - Dead) 2022-06-09 - June 14 set for first hearing canceled at the request of author. [SB947 Detail]
Download: California-2021-SB947-Amended.html
|
Amended
IN
Senate
April 21, 2022 |
CALIFORNIA LEGISLATURE—
2021–2022 REGULAR SESSION
Senate Bill
No. 947
| Introduced by Senator Wilk |
February 08, 2022 |
An act to amend Sections 8547.1, 8547.2, 8547.5, 8547.6, and 8547.7 of, and add Section 8547.14 to, the Government Code, relating to whistleblower protection.
LEGISLATIVE COUNSEL'S DIGEST
SB 947, as amended, Wilk.
Whistleblowers: private entities awarded no-bid large state contracts.
The California Whistleblower Protection Act authorizes the California State Auditor to receive and investigate complaints about state employees or state agencies that have engaged in improper governmental activities, as defined. The act applies to state agencies, as defined, and to the University of California, the California State University, and courts, as specified. Under the act, a person who intentionally engages in acts of reprisal, retaliation, threats, coercion or similar acts against a state employee, University of California employee, California State University employee, court employee, or an applicant for such employment for having made a protected disclosure, as defined, is subject to civil liability and criminal penalties.
This bill would expand these provisions to certain private entities awarded no-bid
large state contracts, as defined, and their employees. Because this bill would create a new 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.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YESBill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 8547.1 of the Government Code is amended to read:8547.1.
The Legislature finds and declares that state employees and employees ofSEC. 2.
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)“Competitive bidding or proposals” means the state or state agency secured at least three bids or proposals for the contract.
(b)
(a) (1) “Employee” means:
(A) 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.
(B) 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.
(C) An employee of a private entity awarded a no-bid
large state contract.
(2) “Employee” includes a former employee who met the criteria of this subdivision during their employment.
(c)
(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.
(d)
(c) “Improper governmental activity” means an activity by a state agency, by an employee, or by a private entity awarded a no-bid large state contract that is undertaken in the performance of the employee’s duties, undertaken inside a state office, or, if undertaken outside a state office by the
employee or private entity awarded a no-bid large state contract, directly relates to state government, whether or not that activity is within the scope of the employee’s 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. For purposes of Sections 8547.5, 8547.6, 8547.7, and 8547.14, “improper governmental activity” includes any activity by a private entity awarded a no-bid
large state contract or by an employee, who otherwise meets the criteria of this subdivision.
(e)
(d) “Person” means an individual, private entity, corporation, trust, association, a state or local government, or an agency or instrumentality of any of the foregoing.
(f)
(e) “Private entity awarded a no-bid large state contract” means a person, business entity, combination of persons and business entities, or a combination of business entities, which has entered into a contract with the state or a state agency and which contract (1) did not require competitive bidding or proposals, and (2) is for an amount equal to or greater than twenty-five
five million dollars ($25,000,000).($5,000,000).
(g)
(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 the California State Auditor’s Office alleging an improper governmental activity and any evidence delivered to the California State Auditor’s Office in support of the allegation. “Protected disclosure” also includes, but is not limited to, a complaint made to the Commission on Judicial Performance.
(h)
(g) “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. 3.
Section 8547.5 of the Government Code is amended to read:8547.5.
(a) The California State Auditor shall create the means for the submission of allegations of improper governmental activity both by transmission via mail or other carrier to a specified mailing address and electronic submission through an Internet Web site portal. The California State Auditor may request that a person 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 California State Auditor shall not require any person submitting an allegation to provide their name or contact information and shall clearly state on the agency Internet Web site that this information is not required in order to submit an allegation.(b) Upon receiving specific information that any
employee, state agency, or private entity awarded a no-bid large state contract has engaged in an improper governmental activity, the California State Auditor may conduct an investigation of the matter. The identity of the person providing the information that initiated the investigation, or of any person providing information in confidence to further an investigation, shall not be disclosed without the express permission of the person providing the information except that the California State Auditor may make the disclosure to a law enforcement agency that is conducting a criminal investigation.
(c) (1) The California State Auditor shall
create an alternative system for submission to an independent investigator of allegations of improper governmental activity engaged or participated in by employees of the California State Auditor’s Office. The system shall allow for submission of allegations both by delivery to a specified mailing address and electronic submission through an Internet Web site portal. The system may request that people submitting allegations provide their name and contact information and the names and contact information for any persons who could help to substantiate the claim. However, the system shall not require people submitting an allegation to provide their name or contact information and shall clearly state that this information is not required to submit an allegation. The system shall ensure that all submissions are promptly and directly delivered to the Employment and Administrative Mandate Section of the Department
of Justice without prior review by the California State Auditor. The Employment and Administrative Mandate Section of the Department of Justice shall review submissions. If the Employment and Administrative Mandate Section of the Department of Justice determines that a submission constitutes an allegation of improper governmental activity, it shall transmit the submission to the independent investigator for further action in accordance with this section.
(2) (A) The independent investigator shall conduct investigations in a manner consistent with the provisions of this article relating to other state civil service employees. If the independent investigator finds that the facts support a conclusion that an employee engaged or participated in improper governmental activities, the investigator shall prepare a
confidential investigative report and, subject to the limitations of this section, send a copy of the report and all evidence gathered during the investigation to the California State Auditor, the Chief Deputy California State Auditor, and the California State Auditor’s Office chief counsel and human resource manager.
(B) If the independent investigator determines it to be appropriate, the independent investigator shall report this information to the Attorney General, to the policy committees of the Senate and Assembly having jurisdiction over the subject involved, and to any other authority that the independent investigator determines appropriate. Subject to the limitations of this section, the independent investigator may provide to the California State Auditor any evidence gathered during the investigation that, in the judgment of the
independent investigator, is necessary to support any of the report’s recommendations. Within 60 days of receiving the independent investigator’s report, the California State Auditor shall report to the independent investigator any actions that it has taken or that it intends to take to implement the recommendations. The California State Auditor shall file subsequent reports on a monthly basis until final action has been taken.
(3) (A) Within 60 days after receiving a copy of the independent investigator’s report, the California State Auditor’s Office shall either serve a notice of adverse action upon the employee who is the subject of the investigative report, or submit to the independent investigator in writing its reasons for not taking adverse action.
(B) If the California State Auditor’s Office elects not to serve a notice of adverse action upon the employee who is the subject of the investigative report, then, within 10 days of receiving the reasons provided by the California State Auditor’s Office pursuant to subparagraph (A), the independent investigator shall:
(i) Notify the Joint Legislative Audit Committee, as described in Section 10501, that it has provided a report to the California State Auditor’s Office pursuant to this paragraph.
(ii) Upon request, provide a copy of the report described in this paragraph, redacted to remove all information that could identify any reporting party, witness, or employee, to the Joint Legislative Audit Committee, as described in Section 10501.
(C) If the California State Auditor’s Office does not take adverse action, the independent investigator may seek consent from the State Personnel Board to file charges in accordance with Section 19583.5.
(D) The following shall not be confidential:
(i) A notice of adverse action served by the California State Auditor.
(ii) A request to file charges filed by the independent investigator with the State Personnel Board.
(4) The California State Auditor’s Office shall reimburse the Employment and Administrative Mandate Section of the Department of Justice for the costs of retaining the independent investigator.
(5) For purposes of this subdivision and any investigation conducted pursuant thereto, “improper governmental activity” has the same meaning as set forth in subdivision (c) of Section 8547.2, except that it shall not include violations of an executive order of the Governor, any policy or procedure mandated by the State Administrative Manual or State Contracting Manual, or any other rule, regulation, or requirement that the California State Auditor’s Office, because of its independence from executive branch and legislative control, is not required to follow.
(d) For purposes of this section, “independent investigator” means an investigator who is retained by the Employment and Administrative Mandate Section of the Department of Justice who is all of the following:
(1) An attorney who is licensed to practice law in this state or a certified fraud examiner.
(2) A person who is experienced in investigating allegations of improper governmental activity in a confidential manner.
(3) A person who is outside of, and independent from, the California State Auditor’s Office and also independent of the executive branch and legislative control.
SEC. 4.
Section 8547.6 of the Government Code is amended to read:8547.6.
(a) The State Auditor may request the assistance of any state department, agency, employee, or private entity awarded a(b) As an alternative to conducting its own investigation, if the State Auditor determines that there is reasonable cause to believe that a state agency, employee, or private entity awarded a no-bid large state contract may have engaged in an improper governmental activity, the State Auditor, subject to the limitations of Section 8547.5, may refer the allegation to the involved state agency or private entity awarded a no-bid large state
contract or to another state agency having direct oversight of over the involved state agency or private entity awarded a no-bid large state contract, to conduct an investigation of the allegation under the State Auditor’s supervision. If the State Auditor refers an allegation to the involved state agency or private entity awarded a no-bid large state contract or to another
state agency having direct oversight of the involved state
agency or private entity awarded a no-bid large state contract, that state agency or private entity awarded a large state contract shall investigate the allegation and report the results of the investigation to the State Auditor within 60 days of the referral and monthly thereafter until final action has been taken. In addition, whenever the State Auditor determines that there is reasonable cause to believe that a state agency, employee, or private entity awarded a no-bid large state
contract may have engaged in an improper governmental activity, the State Auditor, subject to the limitations of Section 8547.5, may refer the allegation to a criminal or administrative law enforcement agency in lieu of conducting or supervising an investigation of the matter.
SEC. 5.
Section 8547.7 of the Government Code is amended to read:8547.7.
(a) If, after investigating an allegation, the State Auditor finds that a state agency, employee, or private entity awarded a(b) The State Auditor shall not have any enforcement power. In any case in which the State Auditor finds that a state
agency, employee, or private entity awarded a no-bid large state contract may have engaged in an improper governmental activity, the State Auditor may provide the finding, and any evidence supporting the finding, subject to the limitations of Section 8547.5, to a criminal law enforcement agency, an administrative law enforcement agency, or a licensing agency that has authority to investigate the matter.
(c) The State Auditor shall keep confidential every investigation, including, but not limited to, all investigative files and work product, except that the State Auditor, whenever they determine it necessary to serve the interests of the state,
and subject to the limitations of Section 8547.5, may issue a public report of an investigation that has substantiated an improper governmental activity, keeping confidential the identity of the employee or employees involved. In addition, subject to the limitations of Section 8547.5, the State Auditor may release any findings or evidence supporting any findings resulting from an investigation conducted pursuant to this article whenever the State Auditor determines it necessary to serve the interests of the state.
(d) This section does not limit any authority conferred upon the Attorney General or any other department or agency of government to investigate any matter.
SEC. 6.
Section 8547.14 is added to the Government Code, to read:8547.14.
(a) An employee of a private entity awarded a(b) Any person who intentionally engages in acts of reprisal,
retaliation, threats, coercion, or similar acts against an employee of a private entity awarded a no-bid large state contract 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.
(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 a private entity awarded a no-bid
large state contract 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 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 person identified pursuant to subdivision (a), and the private entity awarded a no-bid contract has failed to reach a decision regarding that complaint within the time limits established for that purpose by the private entity. The requirement to file a complaint with the person
identified pursuant to subdivision (a) shall not apply if that person, or anyone with authority over that person, is the person who engaged in the reprisal, retaliation, threats, coercion, or similar acts against the employee who made the protected disclosure. Nothing in this section is intended to prohibit the injured party from seeking a remedy if the private entity awarded a no-bid large state contract 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 employee of a private entity awarded a no-bid large state contract 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 or manager 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 or manager 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) This article shall not 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.
