AB 3265

Bill Subjects

Abstract

Existing law creates the California State Auditor's Office, which is independent of the executive branch and legislative control, to examine and report annually upon the financial statements prepared by the executive branch. Other existing law, the California Whistleblower Protection Act, authorizes the California State Auditor to conduct an investigative audit upon receiving specific information that an employee or state agency has engaged in an improper governmental activity, as defined. The act requires the auditor to administer its provisions and to investigate and report on improper governmental activities. The act requires the auditor, if, after investigating, the auditor finds that an employee may have engaged or participated in improper governmental activities, to prepare an investigative report and send a copy of the investigative report to the employee's appointing power. The act prohibits an employee from directly or indirectly using or attempting to use the official authority or influence of the employee for the purpose of intimidating, threatening, coercing, commanding, or attempting to intimidate, threaten, coerce, or command any person for the purpose of interfering with the rights conferred pursuant to the act. This bill would specify that the improper activities to be investigated and reported on include actual or attempted acts of reprisal, retaliation, threats, coercion, or similar improper acts as prohibited by the act. The act requires the auditor to create the means for the submission of allegations of improper governmental activity, as prescribed, and authorizes the auditor, upon receiving specific information that any employee or state agency has engaged in an improper governmental activity, to conduct an investigation of the matter. This bill would require the auditor to provide a dated notice of receipt of submission to the person submitting an allegation of improper governmental activity. The act requires the auditor, if, after investigating an allegation, the auditor finds that a state agency or employee may have engaged or participated in an improper governmental activity, to prepare an investigative report and send a copy of that report to the head of the agency involved and to the head of any other agency that has direct oversight over that involved agency. Under the act, the auditor does not have any enforcement power with regard to such a violation. This bill would require the auditor, upon request, to also notify the employee providing the information that initiated the investigation that an investigative report has been issued. The bill would require the auditor, if the auditor finds that a state agency or employee may have engaged in actual or attempted acts of reprisal, retaliation, threats, coercion, or similar improper acts as prohibited by the act, to send a copy of those findings to the State Personnel Board. The bill would require, in any civil action or administrative proceeding for such a violation, that the investigative report and findings be made available to the complainant, as specified. The act authorizes a state employee or applicant for state employment who files a written complaint with the employee or applicant's supervisor, manager, or the appointing power alleging actual or attempted acts of reprisal, retaliation, threats, coercion, or similar prohibited improper acts, to also file a copy of the written complaint in a prescribed manner with the board, together with a sworn statement that the contents of the written complaint are true, or are believed by the affiant to be true, under penalty of perjury. Under the act, a person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a state employee or applicant for state employment for having made a protected disclosure, is subject to a fine not to exceed $10,000 and imprisonment in the county jail as prescribed. The act provides for additional relief, including an action for damages by the injured party, and provides for punitive damages and reasonable attorney's fees. Under these provisions, any action for damages is not available to the injured party unless the injured party has first filed a complaint with the board and the board has issued, or failed to issue, specified findings. This bill would also authorize the filing of such a complaint with the auditor. By expanding the crime of perjury, this bill would imposed a state-mandated local program. The bill would subject a person who violates that protected disclosure provision to a penalty of $25,000 and imprisonment. The bill would also entitle an injured party, where liability has been established, to specified costs. The bill, with respect to an action by the injured party, would authorize a court to order specified appropriate relief. Under the bill, it would not be a prerequisite for an action for damages for the injured party to first file a complaint with the board. The bill would authorize an employee, in any civil action or administrative proceeding brought pursuant to these provisions, to petition the board or the superior court in any county wherein the violation in question is alleged to have occurred, or wherein the person resides or transacts business, for appropriate temporary or preliminary injunctive relief. The bill would grant the board or court jurisdiction to grant temporary injunctive relief, as prescribed. The act contains complaint provisions specific to the University of California (UC) and the California State University (CSU) . Those university provisions make certain persons who intentionally engage in acts of reprisal, retaliation, threats, coercion, or similar acts against a UC or CSU employee for having made a protected disclosure, subject to a fine not to exceed $10,000 and imprisonment in the county jail, as prescribed. Under those provisions, where liability has been established, the injured party is entitled to reasonable attorney's fees. Additionally, under those provisions, an action for damages is not available until a complaint has been filed with the university and the university has failed to reach a decision within specified time limits. This bill would instead impose a penalty of $25,000 and imprisonment. The bill would specify that an injured party's reasonable attorney's fees include fees and costs for any actions or proceedings before the State Personnel Board. The bill would authorize a court, if liability is established, to order any appropriate relief, including, but not limited to, reinstatement, backpay, restoration of lost service credit, if appropriate, compensatory damages, and the expungement of any adverse records of the employee or applicant for employment who was the subject of the alleged acts of misconduct prohibited by the act. Under the bill, it would not be a prerequisite for an action for damages for the injured party to first file a complaint with the university. The act contains complaint provisions specific to certain courts. Those provisions, except as specified, make a person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against an employee or applicant for employment for having made a protected disclosure, subject to a fine not to exceed $10,000 and imprisonment in the county jail, as prescribed. Under the court provisions, where liability has been established, the injured party is entitled to reasonable attorney's fees. This bill would instead impose a penalty of $25,000 and imprisonment. The bill would authorize a court, if liability is established, to order any appropriate relief, including, but not limited to, reinstatement, backpay, restoration of lost service credit, if appropriate, compensatory damages, and the expungement of any adverse records of the employee or applicant for employment who was the subject of the alleged acts of misconduct prohibited by the act. Existing law authorizes the board to initiate a hearing or investigation of a written complaint of prohibited conduct within 10 working days of its submission. If the executive officer finds that the supervisor, manager, employee, or appointing power retaliated against the complainant for engaging in protected whistleblower activities, the supervisor, manager, employee, or appointing power may request a hearing before the board regarding the findings of the executive officer. If, after the hearing, the board determines that a violation occurred, or if no hearing is requested and the findings of the executive officer conclude that improper activity has occurred, the board is authorized to order any appropriate relief. Existing law requires, if a state employee is successful in an action brought pursuant to these provisions, that the complaining employee be reimbursed for specified costs. This bill would specify that appropriate relief may include reasonable attorney's fees and costs for successful prosecution of a retaliation complaint before the board. The bill would also require the reimbursement of reasonable attorney's fees for a successful action by a complaining employee. Existing law relating to state civil service disciplinary proceedings provides an employee 30 calendar days after the effective date of an adverse action to file with the board a written answer to the notice of adverse action, as prescribed. This bill would additionally authorize an employee to file a complaint pursuant to the act within that period. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason.