SB 947: Whistleblowers: private entities awarded large state contracts.
- Session Year: 2021-2022
- House: Senate
- Latest Version Date: 2022-04-21
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.
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 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.
The Legislature finds and declares that state employees and employees of certain private entities awarded no-bid large state contracts 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 and employees of certain private entities awarded no-bid large state contracts best serve the citizenry when they can be candid and honest without reservation in conducting the peoples business.
SEC. 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 employees 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 employees 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 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.
(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 Auditors 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 Auditors 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 reports recommendations. Within 60 days of receiving the independent investigators 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 investigators report, the California State Auditors 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 Auditors 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 Auditors 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 Auditors 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 Auditors 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 Auditors 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 Auditors 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 Auditors 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 no-bid large state contract 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 State Auditor, that state department, agency, employee, or private entity awarded a no-bid large state contract shall provide the assistance, including, but not limited to, providing access to documents or other information in a timely manner, as required by Section 8545.2. If an investigation 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, employee, or private entity awarded a no-bid large state contract as a result of the State Auditors 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.
(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 Auditors 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 no-bid large state contract may have engaged or participated in an improper governmental activity, the State Auditor shall prepare an investigative report and send a copy of that report to the head of the agency or entity involved and to the head of any other agency that has direct oversight over that involved agency or entity. The investigative report may include the State Auditors recommended actions to prevent the continuation or recurrence of the activity. 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. Subject to the limitations of Section 8547.5, the State Auditor may provide to the involved agency or entity any evidence gathered during the investigation that, in the judgment of the State Auditor, is necessary to support any of the recommendations. Within 60 days of receiving the State Auditors investigative report, the involved agency or entity shall report to the State Auditor any actions that it has taken or that it intends to take to implement the recommendations. The involved agency or entity shall file subsequent reports on a monthly basis until final action has been taken.
(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 no-bid large state contract may file a written complaint with their supervisor or manager, or with any other officer designated for that purpose by the private entity, 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 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 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 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.
SEC. 7.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.
The Legislature finds and declares that state employees and employees of certain private entities awarded no-bid contracts 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 and employees of certain private entities awarded no-bid contracts best serve the citizenry when they can be candid and honest without reservation in conducting the peoples business.
SEC. 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.
(a)(b)(1)Employee means an means: individual
(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. In
(B) addition, employee means a 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. Board,
(C)An employee of a private entity awarded a no-bid contract. Employee
(2)Employee includes a former employee who met the criteria of this subdivision during his or her their employment.
(b)(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.
(c)(d)Improper governmental activity means an activity by a state agency or agency, by an employee employee, or by a private entity awarded a no-bid contract 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, employee or private entity awarded a no-bid contract, directly relates to state government, whether or not that activity is within the scope of his or herthe employees 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 contract or by an employee, who otherwise meets the criteria of this subdivision.
(d)(e)Person means an individual, corporation, trust, association, a state or local government, or an agency or instrumentality of any of the foregoing.
(f)Private entity awarded a no-bid 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 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 million dollars ($25,000,000).
(e)(g)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.
(f)(h)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 his or her 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 his or her 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 or employee, state agency agency, or private entity awarded a no-bid 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 Auditors 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 Auditors 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 reports recommendations. Within 60 days of receiving the independent investigators 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 investigators report, the California State Auditors 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 Auditors 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 Auditors 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 Auditors 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 Auditors 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 Auditors 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 Auditors 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 Auditors 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, or employee employee, or private entity awarded a no-bid contract 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 State Auditor, that state department, agency, or employee employee, or private entity awarded a no-bid contract shall provide the assistance, including, but not limited to, providing access to documents or other information in a timely manner, as required by Section 8545.2. If an investigation 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 employee, or private entity awarded a no-bid contract as a result of the State Auditors 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.
(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 or employee agency, employee, or private entity awarded a no-bid 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, agency or private entity awarded a no-bid contract or to another state agency having direct oversight of the involved state agency, agency or private entity awarded a no-bid contract, to conduct an investigation of the allegation under the State Auditors supervision. If the State Auditor refers an allegation to the involved state agency or private entity awarded a no-bid contract or to another state agency having direct oversight of the involved state agency, agency or private entity awarded a no-bid contract, that state agency 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 or employee agency, employee, or private entity awarded a no-bid 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 or employee agency, employee, or private entity awarded a no-bid contract may have engaged or participated in an improper governmental activity, he or she the State Auditor shall prepare an investigative report and send a copy of that report to the head of the agency or entity involved and to the head of any other agency that has direct oversight over that involved agency. agency or entity. The investigative report may include the State Auditors recommended actions to prevent the continuation or recurrence of the activity. 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. Subject to the limitations of Section 8547.5, the State Auditor may provide to the involved agency or entity any evidence gathered during the investigation that, in the judgment of the State Auditor, is necessary to support any of the recommendations. Within 60 days of receiving the State Auditors investigative report, the involved agency or entity shall report to the State Auditor any actions that it has taken or that it intends to take to implement the recommendations. The involved agency or entity shall file subsequent reports on a monthly basis until final action has been taken.
(b)The State Auditor shall not have any enforcement power. In any case in which the State Auditor finds that a state agency or employee agency, employee, or private entity awarded a no-bid 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 he or she determines 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 no-bid contract may file a written complaint with their supervisor or manager, or with any other officer designated for that purpose by the private entity, 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 a private entity awarded a no-bid 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 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 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 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. Nothing in this section is intended to prohibit the injured party from seeking a remedy if the private entity awarded a no-bid 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 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.
SEC. 7.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.
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Date
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Status
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| Jun 9, 2022 | June 14 set for first hearing canceled at the request of author. |
| Jun 2, 2022 | Referred to Com. on JUD. |
| May 27, 2022 | In Assembly. Read first time. Held at Desk. |
| May 26, 2022 | Read third time. Passed. (Ayes 36. Noes 0. Page 3964.) Ordered to the Assembly. |
| May 19, 2022 | From committee: Do pass. (Ayes 6. Noes 0. Page 3776.) (May 19). |
| May 13, 2022 | Set for hearing May 19. |
| May 9, 2022 | May 9 hearing: Placed on APPR suspense file. |
| Apr 29, 2022 | Set for hearing May 9. |
| Apr 21, 2022 | Read second time and amended. Re-referred to Com. on APPR. |
| Apr 20, 2022 | From committee: Do pass as amended and re-refer to Com. on APPR with recommendation: To consent calendar. (Ayes 11. Noes 0. Page 3435.) (April 19). |
| Apr 5, 2022 | Set for hearing April 19. |
| Feb 16, 2022 | Referred to Com. on JUD. |
| Feb 9, 2022 | From printer. |
| Feb 8, 2022 | Article IV Section 8(a) of the Constitution and Joint Rule 55 dispensed with February 7, 2022, suspending the 30 calendar day requirement. |
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Date
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Description
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Location
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Votes
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| May 26, 2022 | Senate 3rd Reading SB947 Wilk | Senate Floor |
Passed |
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Bill Author
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