2005 California Government Code Sections 8547-8547.12 Article 3. California Whistleblower Protection Act

GOVERNMENT CODE
SECTION 8547-8547.12

8547.  This article shall be known and may be cited as the
"California Whistleblower Protection Act."
8547.1.  The Legislature finds and declares that state employees
should be free to report waste, fraud, abuse of authority, violation
of law, or threat to public health without fear of retribution.  The
Legislature further finds and declares that public servants best
serve the citizenry when they can be candid and honest without
reservation in conducting the people's business.
8547.2.  For the purposes of this article:
   (a) "Employee" means any 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, any employee of the California State University.
   (b) "Improper governmental activity" means any activity by a state
agency or by an employee that is undertaken in the performance of
the employee's official duties, whether or not that action is within
the scope of his or her employment, and that (1) is in violation of
any 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, or (2) is economically wasteful, or involves gross
misconduct, incompetency, or inefficiency.  For purposes of Sections
8547.4, 8547.5, 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.
   (c) "Person" means any individual, corporation, trust,
association, any state or local government, or any agency or
instrumentality of any of the foregoing.
   (d) "Protected disclosure" means any good faith communication that
discloses or demonstrates an intention to disclose information that
may evidence (1) an improper governmental activity or (2) any
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.
   (e) "Illegal order" means any directive to violate or assist in
violating a federal, state, or local law, rule, or regulation or any
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.
   (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.
8547.3.  (a) An employee may 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) 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.
8547.4.  The State Auditor shall administer the provisions of this
article and shall investigate and report on improper governmental
activities.  If, after investigating, the State Auditor finds that an
employee may have engaged or participated in improper governmental
activities, the State Auditor shall send a copy of the investigative
report to the employee's appointing power.  Within 60 days after
receiving a copy of the State Auditor's investigative report, the
appointing power shall either serve a notice of adverse action upon
the employee who is the subject of the investigative report or set
forth in writing its reasons for not taking adverse action.  The
appointing power 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 State Auditor.  If the appointing power
does not take adverse action, it shall submit its written reasons for
not doing so to the State Auditor 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.
8547.5.  Upon receiving specific information that any employee or
state agency has engaged in an improper governmental activity, the
State Auditor may conduct an investigative audit of the matter.  The
identity of the person providing the information that initiated the
investigative audit shall not be disclosed without the written
permission of the person providing the information unless the
disclosure is to a law enforcement agency that is conducting a
criminal investigation.
8547.6.  The State Auditor may request the assistance of any state
department, agency, or employee in conducting any investigative audit
required by this article.  If an investigative audit conducted by
the State Auditor 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.  No information obtained from the State
Auditor by any department, agency, or employee as a result of the
State Auditor's request for assistance, nor any information obtained
thereafter as a result of further investigation, shall be divulged or
made known to any person without the prior approval of the State
Auditor.
8547.7.  (a) If the State Auditor determines that there is
reasonable cause to believe that an employee or state agency has
engaged in any improper governmental activity, he or she shall report
the nature and details of the activity to the head of the employing
agency, or the appropriate appointing authority.  If appropriate, the
State Auditor shall report this information to the Attorney General,
the policy committees of the Senate and Assembly having jurisdiction
over the subject involved, and to any other authority that the State
Auditor determines appropriate.
   (b) The State Auditor shall not have any enforcement power.  In
any case in which the State Auditor submits a report of alleged
improper activity to the head of the employing agency or appropriate
appointing authority, that individual shall report to the State
Auditor with respect to any action taken by the individual regarding
the activity, the first report being transmitted no later than 30
days after the date of the State Auditor's report and monthly
thereafter until final action has been taken.
   (c) Every investigative audit shall be kept confidential, except
that the State Auditor may issue any report of an investigation that
has been substantiated, keeping confidential the identity of the
individual or individuals involved, or release any findings resulting
from an investigation conducted pursuant to this article that is
deemed necessary to serve the interests of the state.
   (d) This section shall not limit any authority conferred upon the
Attorney General or any other department or agency of government to
investigate any matter.
8547.8.  (a) A state employee or applicant for state employment who
files a written complaint with his or her supervisor, manager, or the
appointing power alleging actual or attempted acts of reprisal,
retaliation, threats, coercion, or similar improper acts prohibited
by Section 8547.3, 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 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 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 as defined in subdivision (b)
of Section 8547.2.
   (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.
8547.9.  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 8547.3 or 19683,
it shall transmit a copy of the investigative report to the State
Auditor.  All working papers pertaining to the investigative report
shall be made available under subpoena in a civil action brought
under Section 19683.
8547.10.  (a) A University of California employee, including an
officer or faculty member, or applicant for employment may file a
written complaint with his or her 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 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 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.
   (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.
8547.11.  (a) A University of California employee, including an
officer or faculty member, may 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 the State Auditor 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.
8547.12.  (a) A California State University employee, including an
officer or faculty member, or applicant for employment may file a
written complaint with his or her 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 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 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.



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