AB 2455: Whistleblower protection: state and local government procedures.
- Session Year: 2023-2024
- House: Assembly
- Latest Version Date: 2024-09-25
Current Status:
Passed
(2024-09-25: Chaptered by Secretary of State - Chapter 568, Statutes of 2024.)
Introduced
In Committee
First Chamber
In Committee
Second Chamber
Enacted
(1)Existing law authorizes a city, county, or city and county auditor or controller to maintain a whistleblower hotline to receive calls from persons who have information regarding fraud, waste, or abuse by local government employees, as specified. Existing law authorizes the auditor or controller to refer calls received on the whistleblower hotline to the appropriate government authority for review and possible investigation. During the initial review of a call, existing law requires the auditor, controller, or other appropriate governmental agency to hold in confidence information disclosed through the whistleblower hotline, as specified. Upon receiving specific information that an employee or local government has engaged in an improper government activity, existing law authorizes a city or county auditor or controller to conduct an investigative audit of the matter, as specified. Existing law requires the identity of the individual or individuals reporting the improper government activity and the subject employee or employees to be kept confidential, except as specified. Existing law defines fraud, waste, or abuse to mean any activity by a local agency or employee that is undertaken in the performance of the employees official duties, as described, that is in violation of any local, state, or federal law or regulation relating to, among other things, corruption.
This bill would also authorize a city, county, or city and county auditor or controller to maintain a whistleblower hotline to receive calls from persons who have information regarding improper governmental activity, and would recast information regarding fraud, waste, or abuse by local government employees as improper governmental activity. The bill would instead authorize a city or county auditor or controller, or auditors or controllers designee, to conduct an investigative audit of the matter upon receiving specific information that an employee or local government has engaged in a fraud, waste, or abuse or improper governmental activity, as specified. The bill would also require the identity of the individual or individuals reporting the fraud, waste, or abuse and the subject employee or employees to be kept confidential, except as specified. The bill would expand the above-described duties and authorizations to the auditors or controllers designee, as specified. The bill would revise the definition of fraud, waste, or abuse to also define improper governmental activity, and expand the scope of those terms to include activity by a local agency, employee, or contractor or subcontractor.
(2)Existing law, the California Whistleblower Protection Act, prohibits an employee from directly or indirectly using or attempting to use the official authority or influence of the employee to interfere with a persons rights to disclose improper activity. The act requires the California State Auditor to administer these provisions and to investigate and report on improper governmental activities.
The act defines improper governmental activity to mean an activity by a state agency or by an employee that is, among other things, undertaken in the performance of the employees duties and that meets specified criteria, including that it is in violation of any state or federal law or regulation, including, among other things, corruption.
This bill would specify that the list of violations of any state or federal law or regulation within the definition of an improper governmental activity also includes the misuse of state expenditures, including allocations, loans, or grants.
The act requires the California State Auditor to create the means for the submission of allegations of improper governmental activity by, among other things, electronic submission through an internet website portal, as specified, and requires the auditor to 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, as specified. The act requires the independent investigator to conduct those investigations, as specified, and to, if the independent investigator determines it to be appropriate, report that information to the Attorney General, specified policy committees of the Senate and Assembly, and other authorities, as specified.
This bill would require the independent investigator to, as described above, also report information to the Assembly and Senate budget committees and the Joint Committee on Legislative Audit.
The act requires the California State Auditor to, after investigating an allegation and finding that a state agency or employee may have engaged or participated in an improper governmental activity, prepare an investigative report and send a copy of the report to, if appropriate, the Attorney General, specified policy committees of the Senate and Assembly, and other authorities, as specified.
This bill would require the California State Auditor to, if appropriate, also send a copy of the report to the Assembly and Senate budget committees and the Joint Committee on Legislative Audit.
Existing law authorizes a city, county, or city and county auditor or controller who is elected to office to maintain a whistleblower hotline to receive calls from persons who have information regarding specified conduct by local government employees, and requires a city, county, or city and county auditor or controller who is appointed by, or is an employee of, a legislative body or the government agency that is governed by the city, county, or city and county, to obtain approval of that legislative body or the government agency prior to establishing the whistleblower hotline.
This bill would authorize a city, county, or city and county auditor or controller to identify a designee within the office responsible for the maintenance of the whistleblower hotline as described above.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
(1)Existing law authorizes a city, county, or city and county auditor or controller to maintain a whistleblower hotline to receive calls from persons who have information regarding fraud, waste, or abuse by local government employees, as specified. Existing law authorizes the auditor or controller to refer calls received on the whistleblower hotline to the appropriate government authority for review and possible investigation. During the initial review of a call, existing law requires the auditor, controller, or other appropriate governmental agency to hold in confidence information disclosed through the whistleblower hotline, as specified. Upon receiving specific information that an employee or local government has engaged in an improper government activity, existing law authorizes a city or county auditor or controller to conduct an investigative audit of the matter, as specified. Existing law requires the identity of the individual or individuals reporting the improper government activity and the subject employee or employees to be kept confidential, except as specified. Existing law defines fraud, waste, or abuse to mean any activity by a local agency or employee that is undertaken in the performance of the employees official duties, as described, that is in violation of any local, state, or federal law or regulation relating to, among other things, corruption.
This bill would also authorize a city, county, or city and county auditor or controller to maintain a whistleblower hotline to receive calls from persons who have information regarding improper governmental activity, and would recast information regarding fraud, waste, or abuse by local government employees as improper governmental activity. The bill would instead authorize a city or county auditor or controller, or auditors or controllers designee, to conduct an investigative audit of the matter upon receiving specific information that an employee or local government has engaged in a fraud, waste, or abuse or improper governmental activity, as specified. The bill would also require the identity of the individual or individuals reporting the fraud, waste, or abuse and the subject employee or employees to be kept confidential, except as specified. The bill would expand the above-described duties and authorizations to the auditors or controllers designee, as specified. The bill would revise the definition of fraud, waste, or abuse to also define improper governmental activity, and expand the scope of those terms to include activity by a local agency, employee, or contractor or subcontractor.
(2)Existing law, the California Whistleblower Protection Act, prohibits an employee from directly or indirectly using or attempting to use the official authority or influence of the employee to interfere with a persons rights to disclose improper activity. The act requires the California State Auditor to administer these provisions and to investigate and report on improper governmental activities.
The act defines improper governmental activity to mean an activity by a state agency or by an employee that is, among other things, undertaken in the performance of the employees duties and that meets specified criteria, including that it is in violation of any state or federal law or regulation, including, among other things, corruption.
This bill would specify that the list of violations of any state or federal law or regulation within the definition of an improper governmental activity also includes the misuse of state expenditures, including allocations, loans, or grants.
The act requires the California State Auditor to create the means for the submission of allegations of improper governmental activity by, among other things, electronic submission through an internet website portal, as specified, and requires the auditor to 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, as specified. The act requires the independent investigator to conduct those investigations, as specified, and to, if the independent investigator determines it to be appropriate, report that information to the Attorney General, specified policy committees of the Senate and Assembly, and other authorities, as specified.
This bill would require the independent investigator to, as described above, also report information to the Assembly and Senate budget committees and the Joint Committee on Legislative Audit.
The act requires the California State Auditor to, after investigating an allegation and finding that a state agency or employee may have engaged or participated in an improper governmental activity, prepare an investigative report and send a copy of the report to, if appropriate, the Attorney General, specified policy committees of the Senate and Assembly, and other authorities, as specified.
This bill would require the California State Auditor to, if appropriate, also send a copy of the report to the Assembly and Senate budget committees and the Joint Committee on Legislative Audit.
Existing law authorizes a city, county, or city and county auditor or controller who is elected to office to maintain a whistleblower hotline to receive calls from persons who have information regarding specified conduct by local government employees, and requires a city, county, or city and county auditor or controller who is appointed by, or is an employee of, a legislative body or the government agency that is governed by the city, county, or city and county, to obtain approval of that legislative body or the government agency prior to establishing the whistleblower hotline.
This bill would authorize a city, county, or city and county auditor or controller to identify a designee within the office responsible for the maintenance of the whistleblower hotline as described above.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
(1)Existing law authorizes a city, county, or city and county auditor or controller to maintain a whistleblower hotline to receive calls from persons who have information regarding fraud, waste, or abuse by local government employees, as specified. Existing law authorizes the county auditor or controller to refer calls received on the whistleblower hotline to the appropriate government authority for review and possible investigation. During the initial review of a call, existing law requires the auditor, controller, or other appropriate governmental agency to hold in confidence information disclosed through the whistleblower hotline, as specified. Upon receiving specific information that an employee or local government has engaged in an improper government activity, existing law authorizes a city or county auditor or controller to conduct an investigative audit of the matter, as specified. Existing law requires the identity of the individual or individuals reporting the improper government activity, activity and the subject employee or employees to be kept confidential. confidential, except as specified. Existing law defines fraud, waste, or abuse to mean any activity by a local agency or employee that is undertaken in the performance of the employees official duties, as described, that is in violation of any local, state, or federal law or regulation relating to, among other things, corruption.
This bill would also authorize a city, county, or city and county auditor or controller to maintain a whistleblower hotline to receive calls from persons who have information regarding improper governmental activity, and would recast information regarding fraud, waste, or abuse by local government employees as improper governmental activity. The bill would instead authorize a city or county auditor or controller, or auditors or controllers designee, to conduct an investigative audit of the matter upon receiving specific information that an employee or local government has engaged in a fraud, waste, or abuse or improper governmental activity, as specified. The bill would also require the identity of the individual or individuals reporting the fraud, waste, or abuse, abuse and the subject employee or employees to be kept confidential. confidential, except as specified. The bill would expand the above-described duties and authorizations to the auditors or controllers designee, as specified. The bill would revise the definition of fraud, waste, or abuse to also define improper governmental activity, and expand the scope of those terms to include activity by a local agency, employee, or contractor or subcontractor.
(2)Existing law, the California Whistleblower Protection Act, prohibits an employee from directly or indirectly using or attempting to use the official authority or influence of the employee to interfere with a persons rights to disclose improper activity. The act requires the California State Auditor to administer these provisions and to investigate and report on improper governmental activities.
The act defines improper governmental activity to mean an activity by a state agency or by an employee that is, among other things, undertaken in the performance of the employees duties and that meets specified criteria, including that it is in violation of any state or federal law or regulation, including, among other things, corruption.
This bill would specify that the list of violations of any state or federal law or regulation within the definition of an improper governmental activity also includes the misuse of state expenditures, including allocations, loans, or grants.
The act requires the California State Auditor to create the means for the submission of allegations of improper governmental activity by, among other things, electronic submission through an internet website portal, as specified, and requires the auditor to 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, as specified. The act requires the independent investigator to conduct those investigations, as specified, and to, if the independent investigator determines it to be appropriate, report that information to the Attorney General, specified policy committees of the Senate and Assembly, and other authorities, as specified.
This bill would require the independent investigator to, as described above, also report information to the Assembly and Senate budget committees and the Joint Committee on Legislative Audit.
The act requires the California State Auditor to, after investigating an allegation and finding that a state agency or employee may have engaged or participated in an improper governmental activity, prepare an investigative report and send a copy of the report to, if appropriate, the Attorney General, specified policy committees of the Senate and Assembly, and other authorities, as specified.
This bill would require the California State Auditor to, if appropriate, also send a copy of the report to the Assembly and Senate budget committees and the Joint Committee on Legislative Audit.
Existing law authorizes a state employee or applicant for state employment who files a written complaint with, among other specified persons, their supervisor, alleging actual or attempted acts of, among other things, reprisal, to also file a copy of the written complaint with the State Personnel Board, as specified. The act requires the state employee or applicant for state employment to file their complaint with the board within 12 months of the most recent act of reprisal complained about.This bill would, notwithstanding the above-described provision, authorize the board to accept the complaint within 5 years of the most recent act of reprisal complained about.Existing law authorizes a city, county, or city and county auditor or controller who is elected to office to maintain a whistleblower hotline to receive calls from persons who have information regarding specified conduct by local government employees, and requires a city, county, or city and county auditor or controller who is appointed by, or is an employee of, a legislative body or the government agency that is governed by the city, county, or city and county, to obtain approval of that legislative body or the government agency prior to establishing the whistleblower hotline.
This bill would authorize a city, county, or city and county auditor or controller to identify a designee within the office responsible for the maintenance of the whistleblower hotline as described above.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
(1)Existing law authorizes a city, county, or city and county auditor or controller to maintain a whistleblower hotline to receive calls from persons who have information regarding fraud, waste, or abuse by local government employees, as specified. Existing law authorizes the county auditor to refer calls received on the whistleblower hotline to the appropriate government authority for review and possible investigation. During the initial review of a call, existing law requires the auditor, controller, or other appropriate governmental agency to hold in confidence information disclosed through the whistleblower hotline, as specified. Upon receiving specific information that an employee or local government has engaged in an improper government activity, existing law authorizes a city or county auditor to conduct an investigative audit of the matter, as specified. Existing law requires the identity of the individual or individuals reporting the improper government activity, and the subject employee or employees to be kept confidential. Existing law defines fraud, waste, or abuse to mean any activity by a local agency or employee that is undertaken in the performance of the employees official duties, as described, that is in violation of any local, state, or federal law or regulation relating to, among other things, corruption.
This bill would also authorize a city, county, or city and county auditor or controller to maintain a whistleblower hotline to receive calls from persons who have information regarding improper governmental activity, and would recast information regarding fraud, waste, or abuse by local government employees as improper governmental activity. The bill would instead authorize a city or county auditor or controller, or auditors or controllers designee, to conduct an investigative audit of the matter upon receiving specific information that an employee or local government has engaged in a fraud, waste, or abuse or improper governmental activity, as specified. The bill would also require the identity of the individual or individuals reporting the fraud, waste, or abuse, and the subject employee or employees to be kept confidential. The bill would expand the above-described duties and authorizations to the auditors or controllers designee, as specified. The bill would revise the definition of fraud, waste, or abuse to also define improper governmental activity, and expand the scope of those terms to include activity by a local agency, employee, or contractor or subcontractor.
(2)Existing law, the California Whistleblower Protection Act, prohibits an employee from directly or indirectly using or attempting to use the official authority or influence of the employee to interfere with a persons rights to disclose improper activity. The act requires the California State Auditor to administer these provisions and to investigate and report on improper governmental activities.
The act defines improper governmental activity to mean an activity by a state agency or by an employee that is, among other things, undertaken in the performance of the employees duties and that meets specified criteria, including that it is in violation of any state or federal law or regulation, including, among other things, corruption.
This bill would specify that the list of violations of any state or federal law or regulation within the definition of an improper governmental activity also includes the misuse of state expenditures, including allocations, loans, or grants.
The act requires the California State Auditor to create the means for the submission of allegations of improper governmental activity by, among other things, electronic submission through an internet website portal, as specified, and requires the auditor to 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, as specified. The act requires the independent investigator to conduct those investigations, as specified, and to, if the independent investigator determines it to be appropriate, report that information to the Attorney General, specified policy committees of the Senate and Assembly, and other authorities, as specified.
This bill would require the independent investigator to, as described above, also report information to the Assembly and Senate budget committees and the Joint Committee on Legislative Audit.
The act requires the California State Auditor to, after investigating an allegation and finding that a state agency or employee may have engaged or participated in an improper governmental activity, prepare an investigative report and send a copy of the report to, if appropriate, the Attorney General, specified policy committees of the Senate and Assembly, and other authorities, as specified.
This bill would require the California State Auditor to, if appropriate, also send a copy of the report to the Assembly and Senate budget committees and the Joint Committee on Legislative Audit.
Existing law authorizes a state employee or applicant for state employment who files a written complaint with, among other specified persons, their supervisor, alleging actual or attempted acts of, among other things, reprisal, to also file a copy of the written complaint with the State Personnel Board, as specified. The act requires the state employee or applicant for state employment to file their complaint with the board within 12 months of the most recent act of reprisal complained about.
This bill would, notwithstanding the above-described provision, authorize the board to accept the complaint within 5 years of the most recent act of reprisal complained about.
Existing law authorizes a city, county, or city and county auditor or controller who is elected to office to maintain a whistleblower hotline to receive calls from persons who have information regarding specified conduct by local government employees, and requires a city, county, or city and county auditor or controller who is appointed by, or is an employee of, a legislative body or the government agency that is governed by the city, county, or city and county, to obtain approval of that legislative body or the government agency prior to establishing the whistleblower hotline.
This bill would authorize a city, county, or city and county auditor or controller to identify a designee within the office responsible for the maintenance of the whistleblower hotline as described above.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
(1)Existing law authorizes a city, county, or city and county auditor or controller to maintain a whistleblower hotline to receive calls from persons who have information regarding fraud, waste, or abuse by local government employees, as specified. Existing law authorizes the county auditor to refer calls received on the whistleblower hotline to the appropriate government authority for review and possible investigation. During the initial review of a call, existing law requires the auditor, controller, or other appropriate governmental agency to hold in confidence information disclosed through the whistleblower hotline, as specified. Upon receiving specific information that an employee or local government has engaged in an improper activity, as defined, existing law authorizes a city or county auditor to conduct an investigative audit of the matter, as specified. Existing law defines fraud, waste, or abuse to mean any activity by a local agency or employee that is undertaken in the performance of the employees official duties, as described, that is in violation of any local, state, or federal law or regulation relating to, among other things, corruption.
This bill would also authorize a city, county, or city and county auditor or controller to maintain a whistleblower hotline to receive calls from persons who have information regarding improper governmental activity, and would recast information regarding fraud, waste, or abuse by local government employees as improper governmental activity. The bill would expand the above-described duties and authorizations to the auditors or controllers designee, as specified. The bill would recast information regarding fraud, waste, or abuse by local government employees as improper governmental activity, as defined, and expand its scope The bill would revise the definition of fraud, waste, or abuse to also define improper governmental activity, and expand the scope of those terms to include activity by a local agency, employee, or contractor or subcontractor.
(2)Existing law, the California Whistleblower Protection Act, prohibits an employee from directly or indirectly using or attempting to use the official authority or influence of the employee to interfere with a persons rights to disclose improper activity. The act requires the California State Auditor to administer these provisions and to investigate and report on improper governmental activities.
The act defines improper governmental activity to mean an activity by a state agency or by an employee that is, among other things, undertaken in the performance of the employees duties and that meets specified criteria, including that it is in violation of any state or federal law or regulation, including, among other things, corruption.
This bill would specify that the list of violations of any state or federal law or regulation within the definition of an improper governmental activity also includes the misuse of state expenditures, including allocations, loans, or grants.
The act requires the California State Auditor to create the means for the submission of allegations of improper governmental activity by, among other things, electronic submission through an internet website portal, as specified, and requires the auditor to 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, as specified. The act requires the independent investigator to conduct those investigations, as specified, and to, if the independent investigator determines it to be appropriate, report that information to the Attorney General, specified policy committees of the Senate and Assembly, and other authorities, as specified.
This bill would require the independent investigator to, as described above, also report information to the Assembly and Senate budget committees and the Joint Committee on Legislative Audit.
The act requires the California State Auditor to, after investigating an allegation and finding that a state agency or employee may have engaged or participated in an improper governmental activity, prepare an investigative report and send a copy of the report to, if appropriate, the Attorney General, specified policy committees of the Senate and Assembly, and other authorities, as specified.
This bill would require the California State Auditor to, if appropriate, also send a copy of the report to the Assembly and Senate budget committees and the Joint Committee on Legislative Audit.
Existing law authorizes a state employee or applicant for state employment who files a written complaint with, among other specified persons, their supervisor, alleging actual or attempted acts of, among other things, reprisal, to also file a copy of the written complaint with the State Personnel Board, as specified. The act requires the state employee or applicant for state employment to file their complaint with the board within 12 months of the most recent act of reprisal complained about.
This bill would would, notwithstanding the above-described provision, authorize the board to accept the complaint within 5 years of the most recent act of reprisal complained about.
Existing law authorizes a city, county, or city and county auditor or controller who is elected to office to maintain a whistleblower hotline to receive calls from persons who have information regarding specified conduct by local government employees, and requires a city, county, or city and county auditor or controller who is appointed by, or is an employee of, a legislative body or the government agency that is governed by the city, county, or city and county, to obtain approval of that legislative body or the government agency prior to establishing the whistleblower hotline.
This bill would authorize a city, county, or city and county auditor or controller to identify a designee within the office responsible for the maintenance of the whistleblower hotline as described above.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
(1)Existing law authorizes a city, county, or city and county auditor or controller to maintain a whistleblower hotline to receive calls from persons who have information regarding fraud, waste, or abuse by local government employees, as specified. Existing law authorizes the county auditor to refer calls received on the whistleblower hotline to the appropriate government authority for review and possible investigation. During the initial review of a call, existing law requires the auditor, controller, or other appropriate governmental agency to hold in confidence information disclosed through the whistleblower hotline, as specified. Upon receiving specific information that an employee or local government has engaged in an improper activity, as defined, existing law authorizes a city or county auditor to conduct an investigative audit of the matter, as specified.
This bill would expand the above-described duties and authorizations to the auditors or controllers designee, as specified. The bill would recast information regarding fraud, waste, or abuse by local government employees as improper governmental activity, as defined, and expand its scope to include activity by a local agency, employee, or contractor or subcontractor.
(2)Existing law, the California Whistleblower Protection Act, prohibits an employee from directly or indirectly using or attempting to use the official authority or influence of the employee to interfere with a persons rights to disclose improper activity. The act requires the California State Auditor to administer these provisions and to investigate and report on improper governmental activities.
The act defines improper governmental activity to mean an activity by a state agency or by an employee that is, among other things, undertaken in the performance of the employees duties and that meets specified criteria, including that it is in violation of any state or federal law or regulation, including, among other things, corruption.
This bill would specify that the list of violations of any state or federal law or regulation within the definition of an improper governmental activity also includes the misuse of state expenditures, including allocations, loans, or grants.
The act requires the California State Auditor to create the means for the submission of allegations of improper governmental activity by, among other things, electronic submission through an internet website portal, as specified, and requires the auditor to 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, as specified. The act requires the independent investigator to conduct those investigations, as specified, and to, if the independent investigator determines it to be appropriate, report that information to the Attorney General, specified policy committees of the Senate and Assembly, and other authorities, as specified.
This bill would require the independent investigator to, as described above, also report information to the Assembly and Senate budget committees and the Joint Committee on Legislative Audit.
The act requires the California State Auditor to, after investigating an allegation and finding that a state agency or employee may have engaged or participated in an improper governmental activity, prepare an investigative report and send a copy of that the report to, if appropriate, the Attorney General, specified policy committees of the Senate and Assembly, and other authorities, as specified.
This bill would require the California State Auditor to, if appropriate, also send a copy of that the report to the Assembly and Senate budget committees and the Joint Committee on Legislative Audit.
Existing law authorizes a state employee or applicant for state employment who files a written complaint with, among other specified persons, their supervisor, alleging actual or attempted acts of, among other things, reprisal, to also file a copy of the written complaint with the State Personnel Board, as specified. The act requires the state employee or applicant for state employment to file their complaint with the board within 12 months of the most recent act of reprisal complained about.
This bill would authorize the board to accept the complaint within 5 years of the most recent act of reprisal complained about.
Existing law authorizes a city, county, or city and county auditor or controller who is elected to office to maintain a whistleblower hotline to receive calls from persons who have information regarding specified conduct by local government employees, and requires a city, county, or city and county auditor or controller who is appointed by, or is an employee of, a legislative body or the government agency that is governed by the city, county, or city and county, to obtain approval of that legislative body or the government agency prior to establishing the whistleblower hotline.
This bill would authorize a city, county, or city and county auditor or controller to identify a designee within the office responsible for the maintenance of the whistleblower hotline as described above.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
(1)Existing law authorizes a city, county, or city and county auditor or controller to maintain a whistleblower hotline to receive calls from persons who have information regarding fraud, waste, or abuse by local government employees, as specified. Existing law authorizes the county auditor to refer calls received on the whistleblower hotline to the appropriate government authority for review and possible investigation. During the initial review of a call, existing law requires the auditor, controller, or other appropriate governmental agency to hold in confidence information disclosed through the whistleblower hotline, as specified. Upon receiving specific information that an employee or local government has engaged in an improper activity, as defined, existing law authorizes a city or county auditor to conduct an investigative audit of the matter, as specified.
This bill would expand the above-described duties and authorizations to the auditors or controllers designee, as specified. The bill would recast information regarding fraud, waste, or abuse by local government employees as improper governmental activity, as defined, and expand its scope to include activity by a local agency, employee, or contractor or subcontractor.
(2)Existing law, the California Whistleblower Protection Act, prohibits an employee from directly or indirectly using or attempting to use the official authority or influence of the employee to interfere with a persons rights to disclose improper activity. The act requires the California State Auditor to administer these provisions and to investigate and report on improper governmental activities.
The act defines improper governmental activity to mean an activity by a state agency or by an employee that is, among other things, undertaken in the performance of the employees duties and that meets specified criteria, including that it is in violation of any state or federal law or regulation, including, among other things, corruption.
This bill would specify that the list of violations of any state or federal law or regulation within the definition of an improper governmental activity also includes the misuse of state expenditures, including allocations, loans, or grants.
The act requires the California State Auditor to create the means for the submission of allegations of improper governmental activity by, among other things, electronic submission through an internet website portal, as specified, and requires the auditor to 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, as specified. The act requires the independent investigator to conduct those investigations, as specified, and to, if the independent investigator determines it to be appropriate, report that information to the Attorney General, specified policy committees of the Senate and Assembly, and other authorities, as specified.
This bill would require the independent investigator to, as described above, also report information to the Assembly and Senate budget committees and the Joint Committee on Legislative Audit.
The act requires the California State Auditor to, after investigating an allegation and finding that a state agency or employee may have engaged or participated in an improper governmental activity, prepare an investigative report and send a copy of that report to, if appropriate, the Attorney General, specified policy committees of the Senate and Assembly, and other authorities, as specified.
This bill would require the California State Auditor to, if appropriate, also send a copy of that report to the Assembly and Senate budget committees and the Joint Committee on Legislative Audit.
Existing law authorizes a state employee or applicant for state employment who files a written complaint with, among other specified persons, their supervisor, alleging actual or attempted acts of, among other things, reprisal, to also file a copy of the written complaint with the State Personnel Board, as specified. The act requires the state employee or applicant for state employment to file their complaint with the board within 12 months of the most recent act of reprisal complained about.
This bill would authorize the board to accept the complaint within 5 years of the most recent act of reprisal complained about.
Existing law authorizes a city, county, or city and county auditor or controller who is elected to office to maintain a whistleblower hotline to receive calls from persons who have information regarding specified conduct by local government employees, and requires a city, county, or city and county auditor or controller who is appointed by, or is an employee of, a legislative body or the government agency that is governed by the city, county, or city and county, to obtain approval of that legislative body or the government agency prior to establishing the whistleblower hotline.
This bill would authorize a city, county, or city and county auditor or controller to identify a designee within the office responsible for the maintenance of the whistleblower hotline as described above.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
(1)Existing law authorizes a city, county, or city and county auditor or controller to maintain a whistleblower hotline to receive calls from persons who have information regarding fraud, waste, or abuse by local government employees, as specified. Existing law authorizes the county auditor to refer calls received on the whistleblower hotline to the appropriate government authority for review and possible investigation. During the initial review of a call, existing law requires the auditor, controller, or other appropriate governmental agency to hold in confidence information disclosed through the whistleblower hotline, as specified. Upon receiving specific information that an employee or local government has engaged in an improper activity, as defined, existing law authorizes a city or county auditor to conduct an investigative audit of the matter, as specified.
This bill would expand the above-described duties and authorizations to the auditors or controllers designee, as specified. The bill would recast information regarding fraud, waste, or abuse by local government employees as improper governmental activity, as defined, and expand its scope to include activity by a local agency, employee, or contractor or subcontractor.
(2)Existing law, the California Whistleblower Protection Act, prohibits an employee from directly or indirectly using or attempting to use the official authority or influence of the employee to interfere with a persons rights to disclose improper activity. The act requires the California State Auditor to administer these provisions and to investigate and report on improper governmental activities.
The act defines improper governmental activity to mean an activity by a state agency or by an employee that is, among other things, undertaken in the performance of the employees duties and that meets specified criteria, including that it is in violation of any state or federal law or regulation, including, among other things, corruption.
This bill would specify that the list of violations of any state or federal law or regulation within the definition of an improper governmental activity also includes the misuse of state expenditures, including allocations, loans, or grants.
The act requires the California State Auditor to create the means for the submission of allegations of improper governmental activity by, among other things, electronic submission through an internet website portal, as specified, and requires the auditor to 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, as specified. The act requires the independent investigator to conduct those investigations, as specified, and to, if the independent investigator determines it to be appropriate, report that information to the Attorney General, specified policy committees of the Senate and Assembly, and other authorities, as specified.
This bill would require the independent investigator to, as described above, also report information to the Assembly and Senate budget committees and the Joint Committee on Legislative Audit.
The act requires the California State Auditor to, after investigating an allegation and finding that a state agency or employee may have engaged or participated in an improper governmental activity, prepare an investigative report and send a copy of that report to, if appropriate, the Attorney General, specified policy committees of the Senate and Assembly, and other authorities, as specified.
This bill would require the California State Auditor to, if appropriate, also send a copy of that report to the Assembly and Senate budget committees and the Joint Committee on Legislative Audit.
Existing law authorizes a state employee or applicant for state employment who files a written complaint with, among other specified persons, their supervisor, alleging actual or attempted acts of, among other things, reprisal, to also file a copy of the written complaint with the State Personnel Board, as specified. The act requires the state employee or applicant for state employment to file their complaint with the board within 12 months of the most recent act of reprisal complained about.
This bill would authorize the board to accept the complaint within 5 years of the most recent act of reprisal complained about.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
Existing law establishes the San Francisco Bay Area Water Emergency Transportation Authority. Existing law authorizes the authority to operate a comprehensive emergency public water transportation system that includes water transportation services, water transit terminals, and any other transport and facilities supportive of the system for the San Francisco Bay area region, as provided.This bill would make nonsubstantive changes to the latter provision.Existing law establishes the San Francisco Bay Area Water Emergency Transportation Authority. Existing law authorizes the authority to operate a comprehensive emergency public water transportation system that includes water transportation services, water transit terminals, and any other transport and facilities supportive of the system for the San Francisco Bay area region, as provided.
This bill would make nonsubstantive changes to the latter provision.
This bill shall be known, and may be cited, as the Whistleblower Protection Enhancement Act.
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)(1)Employee means either of the following:
(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.
(2)Employee includes a former employee who met the criteria of this subdivision during their employment.
(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.
(c)(1)Improper governmental activity means an activity by a state agency or by an employee 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, directly relates to state government, whether or not that activity is within the scope of their employment, and that meets any of the following criteria:
(A)The activity 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, misuse of state expenditures, including allocations, loans, or grants, or willful omission to perform duty.
(B)The activity 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.
(C)The activity is economically wasteful, involves gross misconduct, incompetency, or inefficiency.
(2)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.
(3)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.
(d)Person means an individual, corporation, trust, association, a state or local government, or an agency or instrumentality of any of the foregoing.
(e)(1)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 either of the following circumstances:
(A)An improper governmental activity.
(B)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.
(2)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.
(3)Protected disclosure also includes, but is not limited to, a complaint made to the Commission on Judicial Performance.
(f)(1)State agency is defined by Section 11000.
(2)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.
(3)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 website 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 website that this information is not required in order to submit an allegation.
(b)Upon receiving specific information that any employee or state agency 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 website 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 the Assembly and Senate budget committees, the Joint Legislative Audit Committee, 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 8547.7 of the Government Code is amended to read:8547.7.(a)If, after investigating an allegation, the California State Auditor finds that a state agency or employee may have engaged or participated in an improper governmental activity, the California State Auditor shall prepare an investigative report and send a copy of the report to the head of the agency involved and to the head of any other agency that has direct oversight over that involved agency. The investigative report may include the California State Auditors recommended actions to prevent the continuation or recurrence of the activity. If appropriate, the California State Auditor shall report this information to the Attorney General, the policy committees of the Senate and Assembly having jurisdiction over the subject involved, the Assembly and Senate budget committees, the Joint Legislative Audit Committee, and to any other authority that the California State Auditor determines appropriate. Subject to the limitations of Section 8547.5, the California State Auditor may provide to the involved agency any evidence gathered during the investigation that, in the judgment of the California State Auditor, is necessary to support any of the recommendations. Within 60 days of receiving the California State Auditors investigative report, the involved agency shall report to the California State Auditor any actions that it has taken or that it intends to take to implement the recommendations. The agency shall file subsequent reports on a monthly basis until final action has been taken.
(b)The California State Auditor shall not have any enforcement power. In any case in which the California State Auditor finds that a state agency or employee may have engaged in an improper governmental activity, the California 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 California State Auditor shall keep confidential every investigation, including, but not limited to, all investigative files and work product, except that the California State Auditor, whenever the California State Auditor determines 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 California State Auditor may release any findings or evidence supporting any findings resulting from an investigation conducted pursuant to this article whenever the California 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. 5.Section 53087.6 of the Government Code is amended to read:53087.6.(a)(1)A city, county, or city and county auditor or controller who is elected to office may maintain a whistleblower hotline to receive calls from persons who have information regarding fraud, waste, or abuse or improper governmental activity.
(2)A city, county, or city and county auditor or controller who is appointed by, or is an employee of, a legislative body or the governmental agency that is governed by the city, county, or city and county, shall obtain approval of that legislative body or the governmental agency, as the case may be, prior to establishing the whistleblower hotline.
(3)A city, county, or city and county auditor or controller may identify a designee within the office responsible for the maintenance of the whistleblower hotline pursuant to this section.
(b)The auditor or controller, or the auditors or controllers designee, may refer calls received on the whistleblower hotline to the appropriate government authority for review and possible investigation.
(c)During the initial review of a call received pursuant to subdivision (a), the auditor or controller, or the auditors or controllers designee, or other appropriate governmental agency, shall hold in confidence information disclosed through the whistleblower hotline, including the identity of the caller disclosing the information and the parties identified by the caller.
(d)A call made to the whistleblower hotline pursuant to subdivision (a), or its referral to an appropriate agency under subdivision (b), may not be the sole basis for a time period under a statute of limitation to commence. This section does not change existing law relating to statutes of limitation.
(e)(1)Upon receiving specific information regarding fraud, waste, or abuse or improper governmental activity, a city or county auditor or controller, or auditors or controllers designee, 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 that person, unless the disclosure is to a law enforcement agency that is conducting a criminal investigation. If the specific information is in regard to fraud, waste, or abuse or improper governmental activity that occurred under the jurisdiction of another city, county, or city and county, the information shall be forwarded to the appropriate auditor or controller for that city, county, or city and county.
(2)Any investigative audit conducted pursuant to this subdivision shall be kept confidential, except to issue any report of an investigation that has been substantiated, or to release any findings resulting from a completed investigation that are deemed necessary to serve the interests of the public. In any event, the identity of the individual or individuals reporting the fraud, waste, or abuse or improper governmental activity and the subject employee or employees shall be kept confidential.
(3)Notwithstanding paragraph (2), the auditor or controller may provide a copy of a substantiated audit report that includes the identities of the subject employee or employees and other pertinent information concerning the investigation to the appropriate appointing authority for disciplinary purposes. The substantiated audit report, any subsequent investigatory materials or information, and the disposition of any resulting disciplinary proceedings are subject to the confidentiality provisions of applicable local, state, and federal statutes, rules, and regulations.
(f)For purposes of this section, the following definitions apply:
(1)Call means any method of communication by which a person may submit information to the auditor or controller, including, but not limited to, a whistleblower hotline established under this section, that may include in-person notification, telephone call or voicemail, electronic mail, electronic text message, online form submission, facsimile, or other similar means. This paragraph is declaratory of existing law and shall not be construed or interpreted as creating new law or as modifying or changing existing law.
(2)Contractor or subcontractor means a person, firm, corporation, partnership, vendor, or association and its responsible managing officer, as well as any directors, owners, coowners, shareholders, partners, supervisors, managers, employees, and other individuals associated with the contractor or subcontractor who has submitted a bid or proposal; seeks to contract with, contracted with, or is in a contractual relationship with; or receives funding, including, but not limited to, grants from a city, county, or city and county, or nonprofit, agency, commission, or department created by the city, county, or city and county.
(3)Employee means any individual employed by any county, city, or city and county, including any charter city or county, and any school district, community college district, municipal or public corporation, or political subdivision that falls under the auditors or controllers jurisdiction.
(4)Fraud, waste, or abuse or improper governmental activity means any activity by a local agency, employee, or contractor or subcontractor that may be in violation of any local, state, or federal law, ordinance, or regulation relating to corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse or misappropriation of government property, funds, or resources, or willful omission to perform a duty, is economically wasteful, or involves gross misconduct.
(5)Hotline means any method of communication established by a city, county, or a city and county auditor or controller or the auditors or controllers authorized representatives, as directed by a legislative body or the governmental agency that is governed by the city, county, or city and county. This paragraph is declaratory of existing law and shall not be construed or interpreted as creating new law or as modifying or changing existing law.
SEC. 6.The Legislature finds and declares that Section 5 of this act, which amends Section 53087.6 of the Government Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
In order to protect whistleblowers, the California State Auditor or Controller, and any designee of the auditor or controller from undue exposure or retaliation while also protecting the actual and perceived integrity of investigations and preventing malfeasance, it is necessary to preserve the confidentiality of this information.
This bill shall be known, and may be cited, as the Whistleblower Protection Enhancement Act.
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)(1)Employee means either of the following:
(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.
(2)Employee includes a former employee who met the criteria of this subdivision during their employment.
(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.
(c)(1)Improper governmental activity means an activity by a state agency or by an employee 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, directly relates to state government, whether or not that activity is within the scope of their employment, and that meets any of the following criteria:
(A)The activity 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, misuse of state expenditures, including allocations, loans, or grants, or willful omission to perform duty.
(B)The activity 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.
(C)The activity is economically wasteful, involves gross misconduct, incompetency, or inefficiency.
(2)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.
(3)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.
(d)Person means an individual, corporation, trust, association, a state or local government, or an agency or instrumentality of any of the foregoing.
(e)(1)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 either of the following circumstances:
(A)An improper governmental activity.
(B)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.
(2)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.
(3)Protected disclosure also includes, but is not limited to, a complaint made to the Commission on Judicial Performance.
(f)(1)State agency is defined by Section 11000.
(2)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.
(3)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 website 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 website that this information is not required in order to submit an allegation.
(b)Upon receiving specific information that any employee or state agency 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 website 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 the Assembly and Senate budget committees, the Joint Legislative Audit Committee, 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 8547.7 of the Government Code is amended to read:8547.7.(a)If, after investigating an allegation, the California State Auditor finds that a state agency or employee may have engaged or participated in an improper governmental activity, the California State Auditor shall prepare an investigative report and send a copy of the report to the head of the agency involved and to the head of any other agency that has direct oversight over that involved agency. The investigative report may include the California State Auditors recommended actions to prevent the continuation or recurrence of the activity. If appropriate, the California State Auditor shall report this information to the Attorney General, the policy committees of the Senate and Assembly having jurisdiction over the subject involved, the Assembly and Senate budget committees, the Joint Legislative Audit Committee, and to any other authority that the California State Auditor determines appropriate. Subject to the limitations of Section 8547.5, the California State Auditor may provide to the involved agency any evidence gathered during the investigation that, in the judgment of the California State Auditor, is necessary to support any of the recommendations. Within 60 days of receiving the California State Auditors investigative report, the involved agency shall report to the California State Auditor any actions that it has taken or that it intends to take to implement the recommendations. The agency shall file subsequent reports on a monthly basis until final action has been taken.
(b)The California State Auditor shall not have any enforcement power. In any case in which the California State Auditor finds that a state agency or employee may have engaged in an improper governmental activity, the California 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 California State Auditor shall keep confidential every investigation, including, but not limited to, all investigative files and work product, except that the California State Auditor, whenever the California State Auditor determines 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 California State Auditor may release any findings or evidence supporting any findings resulting from an investigation conducted pursuant to this article whenever the California 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. 5.Section 53087.6 of the Government Code is amended to read:53087.6.(a)(1)A city, county, or city and county auditor or controller who is elected to office may maintain a whistleblower hotline to receive calls from persons who have information regarding fraud, waste, or abuse or improper governmental activity.
(2)A city, county, or city and county auditor or controller who is appointed by, or is an employee of, a legislative body or the governmental agency that is governed by the city, county, or city and county, shall obtain approval of that legislative body or the governmental agency, as the case may be, prior to establishing the whistleblower hotline.
(3)A city, county, or city and county auditor or controller may identify a designee within the office responsible for the maintenance of the whistleblower hotline pursuant to this section.
(b)The auditor or controller, or the auditors or controllers designee, may refer calls received on the whistleblower hotline to the appropriate government authority for review and possible investigation.
(c)During the initial review of a call received pursuant to subdivision (a), the auditor or controller, or the auditors or controllers designee, or other appropriate governmental agency, shall hold in confidence information disclosed through the whistleblower hotline, including the identity of the caller disclosing the information and the parties identified by the caller.
(d)A call made to the whistleblower hotline pursuant to subdivision (a), or its referral to an appropriate agency under subdivision (b), may not be the sole basis for a time period under a statute of limitation to commence. This section does not change existing law relating to statutes of limitation.
(e)(1)Upon receiving specific information regarding fraud, waste, or abuse or improper governmental activity, a city or county auditor or controller, or auditors or controllers designee, 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 that person, unless the disclosure is to a law enforcement agency that is conducting a criminal investigation. If the specific information is in regard to fraud, waste, or abuse or improper governmental activity that occurred under the jurisdiction of another city, county, or city and county, the information shall be forwarded to the appropriate auditor or controller for that city, county, or city and county.
(2)Any investigative audit conducted pursuant to this subdivision shall be kept confidential, except to issue any report of an investigation that has been substantiated, or to release any findings resulting from a completed investigation that are deemed necessary to serve the interests of the public. In any event, the identity of the individual or individuals reporting the fraud, waste, or abuse or improper governmental activity and the subject employee or employees shall be kept confidential.
(3)Notwithstanding paragraph (2), the auditor or controller may provide a copy of a substantiated audit report that includes the identities of the subject employee or employees and other pertinent information concerning the investigation to the appropriate appointing authority for disciplinary purposes. The substantiated audit report, any subsequent investigatory materials or information, and the disposition of any resulting disciplinary proceedings are subject to the confidentiality provisions of applicable local, state, and federal statutes, rules, and regulations.
(f)For purposes of this section, the following definitions apply:
(1)Call means any method of communication by which a person may submit information to the auditor or controller, including, but not limited to, a whistleblower hotline established under this section, that may include in-person notification, telephone call or voicemail, electronic mail, electronic text message, online form submission, facsimile, or other similar means. This paragraph is declaratory of existing law and shall not be construed or interpreted as creating new law or as modifying or changing existing law.
(2)Contractor or subcontractor means a person, firm, corporation, partnership, vendor, or association and its responsible managing officer, as well as any directors, owners, coowners, shareholders, partners, supervisors, managers, employees, and other individuals associated with the contractor or subcontractor who has submitted a bid or proposal; seeks to contract with, contracted with, or is in a contractual relationship with; or receives funding, including, but not limited to, grants from a city, county, or city and county, or nonprofit, agency, commission, or department created by the city, county, or city and county.
(3)Employee means any individual employed by any county, city, or city and county, including any charter city or county, and any school district, community college district, municipal or public corporation, or political subdivision that falls under the auditors or controllers jurisdiction.
(4)Fraud, waste, or abuse or improper governmental activity means any activity by a local agency, employee, or contractor or subcontractor that may be in violation of any local, state, or federal law, ordinance, or regulation relating to corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse or misappropriation of government property, funds, or resources, or willful omission to perform a duty, is economically wasteful, or involves gross misconduct.
(5)Hotline means any method of communication established by a city, county, or a city and county auditor or controller or the auditors or controllers authorized representatives, as directed by a legislative body or the governmental agency that is governed by the city, county, or city and county. This paragraph is declaratory of existing law and shall not be construed or interpreted as creating new law or as modifying or changing existing law.
SEC. 6.The Legislature finds and declares that Section 5 of this act, which amends Section 53087.6 of the Government Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
In order to protect whistleblowers, the California State Auditor or Controller, and any designee of the auditor or controller from undue exposure or retaliation while also protecting the actual and perceived integrity of investigations and preventing malfeasance, it is necessary to preserve the confidentiality of this information.
This bill shall be known, and may be cited, as the Whistleblower Protection Enhancement Act.
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)(1)Employee means either of the following:
(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.
(2)Employee includes a former employee who met the criteria of this subdivision during their employment.
(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.
(c)(1)Improper governmental activity means an activity by a state agency or by an employee 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, directly relates to state government, whether or not that activity is within the scope of their employment, and that meets any of the following criteria:
(A)The activity 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, misuse of state expenditures, including allocations, loans, or grants, or willful omission to perform duty.
(B)The activity 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.
(C)The activity is economically wasteful, involves gross misconduct, incompetency, or inefficiency.
(2)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.
(3)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.
(d)Person means an individual, corporation, trust, association, a state or local government, or an agency or instrumentality of any of the foregoing.
(e)(1)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 either of the following circumstances:
(A)An improper governmental activity.
(B)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.
(2)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.
(3)Protected disclosure also includes, but is not limited to, a complaint made to the Commission on Judicial Performance.
(f)(1)State agency is defined by Section 11000.
(2)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.
(3)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 website 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 website that this information is not required in order to submit an allegation.
(b)Upon receiving specific information that any employee or state agency 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 website 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 the Assembly and Senate budget committees, the Joint Legislative Audit Committee, 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 8547.7 of the Government Code is amended to read:8547.7.(a)If, after investigating an allegation, the California State Auditor finds that a state agency or employee may have engaged or participated in an improper governmental activity, the California State Auditor shall prepare an investigative report and send a copy of the report to the head of the agency involved and to the head of any other agency that has direct oversight over that involved agency. The investigative report may include the California State Auditors recommended actions to prevent the continuation or recurrence of the activity. If appropriate, the California State Auditor shall report this information to the Attorney General, the policy committees of the Senate and Assembly having jurisdiction over the subject involved, the Assembly and Senate budget committees, the Joint Legislative Audit Committee, and to any other authority that the California State Auditor determines appropriate. Subject to the limitations of Section 8547.5, the California State Auditor may provide to the involved agency any evidence gathered during the investigation that, in the judgment of the California State Auditor, is necessary to support any of the recommendations. Within 60 days of receiving the California State Auditors investigative report, the involved agency shall report to the California State Auditor any actions that it has taken or that it intends to take to implement the recommendations. The agency shall file subsequent reports on a monthly basis until final action has been taken.
(b)The California State Auditor shall not have any enforcement power. In any case in which the California State Auditor finds that a state agency or employee may have engaged in an improper governmental activity, the California 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 California State Auditor shall keep confidential every investigation, including, but not limited to, all investigative files and work product, except that the California State Auditor, whenever the California State Auditor determines 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 California State Auditor may release any findings or evidence supporting any findings resulting from an investigation conducted pursuant to this article whenever the California 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. 5.Section 8547.8 of the Government Code is amended to read:8547.8.(a)A state employee or applicant for state employment who files a written complaint with their 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.(1)The state employee or applicant for state employment shall file their complaint with the board within 12 months of the most recent act of reprisal complained about.(2)Notwithstanding paragraph (1), the board may accept the complaint filed by the state employee or applicant for state employment within five years 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 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 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.SEC. 6.SEC. 5.Section 53087.6 of the Government Code is amended to read:53087.6.(a)(1)A city, county, or city and county auditor or controller who is elected to office may maintain a whistleblower hotline to receive calls from persons who have information regarding fraud, waste, or abuse or improper governmental activity.
(2)A city, county, or city and county auditor or controller who is appointed by, or is an employee of, a legislative body or the governmental agency that is governed by the city, county, or city and county, shall obtain approval of that legislative body or the governmental agency, as the case may be, prior to establishing the whistleblower hotline.
(3)A city, county, or city and county auditor or controller may identify a designee within the office responsible for the maintenance of the whistleblower hotline pursuant to this section.
(b)The auditor or controller, or the auditors or controllers designee, may refer calls received on the whistleblower hotline to the appropriate government authority for review and possible investigation.
(c)During the initial review of a call received pursuant to subdivision (a), the auditor or controller, or the auditors or controllers designee, or other appropriate governmental agency, shall hold in confidence information disclosed through the whistleblower hotline, including the identity of the caller disclosing the information and the parties identified by the caller.
(d)A call made to the whistleblower hotline pursuant to subdivision (a), or its referral to an appropriate agency under subdivision (b), may not be the sole basis for a time period under a statute of limitation to commence. This section does not change existing law relating to statutes of limitation.
(e)(1)Upon receiving specific information regarding fraud, waste, or abuse or improper governmental activity, a city or county auditor or controller, or auditors or controllers designee, 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 that person, unless the disclosure is to a law enforcement agency that is conducting a criminal investigation. If the specific information is in regard to fraud, waste, or abuse or improper governmental activity that occurred under the jurisdiction of another city, county, or city and county, the information shall be forwarded to the appropriate auditor or controller for that city, county, or city and county.
(2)Any investigative audit conducted pursuant to this subdivision shall be kept confidential, except to issue any report of an investigation that has been substantiated, or to release any findings resulting from a completed investigation that are deemed necessary to serve the interests of the public. In any event, the identity of the individual or individuals reporting the fraud, waste, or abuse or improper governmental activity and the subject employee or employees shall be kept confidential.
(3)Notwithstanding paragraph (2), the auditor or controller may provide a copy of a substantiated audit report that includes the identities of the subject employee or employees and other pertinent information concerning the investigation to the appropriate appointing authority for disciplinary purposes. The substantiated audit report, any subsequent investigatory materials or information, and the disposition of any resulting disciplinary proceedings are subject to the confidentiality provisions of applicable local, state, and federal statutes, rules, and regulations.
(f)For purposes of this section, the following definitions apply:
(1)Call means any method of communication by which a person may submit information to the auditor or controller, including, but not limited to, a whistleblower hotline established under this section, that may include in-person notification, telephone call or voicemail, electronic mail, electronic text message, online form submission, facsimile, or other similar means. This paragraph is declaratory of existing law and shall not be construed or interpreted as creating new law or as modifying or changing existing law.
(2)Contractor or subcontractor means a person, firm, corporation, partnership, vendor, or association and its responsible managing officer, as well as any directors, owners, coowners, shareholders, partners, supervisors, managers, employees, and other individuals associated with the contractor or subcontractor who has submitted a bid or proposal; seeks to contract with, contracted with, or is in a contractual relationship with; or receives funding, including, but not limited to, grants from a city, county, or city and county, or nonprofit, agency, commission, or department created by the city, county, or city and county.
(3)Employee means any individual employed by any county, city, or city and county, including any charter city or county, and any school district, community college district, municipal or public corporation, or political subdivision that falls under the auditors or controllers jurisdiction.
(4)Fraud, waste, or abuse or improper governmental activity means any activity by a local agency, employee, or contractor or subcontractor that may be in violation of any local, state, or federal law, ordinance, or regulation relating to corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse or misappropriation of government property, funds, or resources, or willful omission to perform a duty, is economically wasteful, or involves gross misconduct.
(5)Hotline means any method of communication established by a city, county, or a city and county auditor or controller or the auditors or controllers authorized representatives, as directed by a legislative body or the governmental agency that is governed by the city, county, or city and county. This paragraph is declaratory of existing law and shall not be construed or interpreted as creating new law or as modifying or changing existing law.
SEC. 7.SEC. 6.The Legislature finds and declares that Section 6 5 of this act, which amends Section 53087.6 of the Government Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
In order to protect whistleblowers, the California State Auditor or Controller, and any designee of the auditor or controller from undue exposure or retaliation while also protecting the actual and perceived integrity of investigations and preventing malfeasance, it is necessary to preserve the confidentiality of this information.
This bill shall be known, and may be cited, as the Whistleblower Protection Enhancement Act.
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)(1)Employee means either of the following:
(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.
(2)Employee includes a former employee who met the criteria of this subdivision during their employment.
(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.
(c)(1)Improper governmental activity means an activity by a state agency or by an employee 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, directly relates to state government, whether or not that activity is within the scope of their employment, and that meets any of the following criteria:
(A)The activity 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, misuse of state expenditures, including allocations, loans, or grants, or willful omission to perform duty.
(B)The activity 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.
(C)The activity is economically wasteful, involves gross misconduct, incompetency, or inefficiency.
(2)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.
(3)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.
(d)Person means an individual, corporation, trust, association, a state or local government, or an agency or instrumentality of any of the foregoing.
(e)(1)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 either of the following circumstances:
(A)An improper governmental activity.
(B)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.
(2)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.
(3)Protected disclosure also includes, but is not limited to, a complaint made to the Commission on Judicial Performance.
(f)(1)State agency is defined by Section 11000.
(2)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.
(3)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 website 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 website that this information is not required in order to submit an allegation.
(b)Upon receiving specific information that any employee or state agency 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 website 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 the Assembly and Senate budget committees, the Joint Legislative Audit Committee, 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 8547.7 of the Government Code is amended to read:8547.7.(a)If, after investigating an allegation, the California State Auditor finds that a state agency or employee may have engaged or participated in an improper governmental activity, the California State Auditor shall prepare an investigative report and send a copy of the report to the head of the agency involved and to the head of any other agency that has direct oversight over that involved agency. The investigative report may include the California State Auditors recommended actions to prevent the continuation or recurrence of the activity. If appropriate, the California State Auditor shall report this information to the Attorney General, the policy committees of the Senate and Assembly having jurisdiction over the subject involved, the Assembly and Senate budget committees, the Joint Legislative Audit Committee, and to any other authority that the California State Auditor determines appropriate. Subject to the limitations of Section 8547.5, the California State Auditor may provide to the involved agency any evidence gathered during the investigation that, in the judgment of the California State Auditor, is necessary to support any of the recommendations. Within 60 days of receiving the California State Auditors investigative report, the involved agency shall report to the California State Auditor any actions that it has taken or that it intends to take to implement the recommendations. The agency shall file subsequent reports on a monthly basis until final action has been taken.
(b)The California State Auditor shall not have any enforcement power. In any case in which the California State Auditor finds that a state agency or employee may have engaged in an improper governmental activity, the California 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 California State Auditor shall keep confidential every investigation, including, but not limited to, all investigative files and work product, except that the California State Auditor, whenever the California State Auditor determines 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 California State Auditor may release any findings or evidence supporting any findings resulting from an investigation conducted pursuant to this article whenever the California 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. 5.Section 8547.8 of the Government Code is amended to read:8547.8.(a)A state employee or applicant for state employment who files a written complaint with their 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.
(1)The state employee or applicant for state employment shall file their complaint with the board within 12 months of the most recent act of reprisal complained about.
(2)Notwithstanding paragraph (1), the board may accept the complaint filed by the state employee or applicant for state employment within five years 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 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 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.
SEC. 6.Section 53087.6 of the Government Code is amended to read:53087.6.(a)(1)A city, county, or city and county auditor or controller who is elected to office may maintain a whistleblower hotline to receive calls from persons who have information regarding fraud, waste, or abuse or improper governmental activity.
(2)A city, county, or city and county auditor or controller who is appointed by, or is an employee of, a legislative body or the governmental agency that is governed by the city, county, or city and county, shall obtain approval of that legislative body or the governmental agency, as the case may be, prior to establishing the whistleblower hotline.
(3)A city, county, or city and county auditor or controller may identify a designee within the office responsible for the maintenance of the whistleblower hotline pursuant to this section.
(b)The auditor or controller, or the auditors or controllers designee, may refer calls received on the whistleblower hotline to the appropriate government authority for review and possible investigation.
(c)During the initial review of a call received pursuant to subdivision (a), the auditor or controller, or the auditors or controllers designee, or other appropriate governmental agency, shall hold in confidence information disclosed through the whistleblower hotline, including the identity of the caller disclosing the information and the parties identified by the caller.
(d)A call made to the whistleblower hotline pursuant to subdivision (a), or its referral to an appropriate agency under subdivision (b), may not be the sole basis for a time period under a statute of limitation to commence. This section does not change existing law relating to statutes of limitation.
(e)(1)Upon receiving specific information regarding fraud, waste, or abuse or improper governmental activity, a city or county auditor or controller, or auditors or controllers designee, 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 that person, unless the disclosure is to a law enforcement agency that is conducting a criminal investigation. If the specific information is in regard to fraud, waste, or abuse or improper government governmental activity that occurred under the jurisdiction of another city, county, or city and county, the information shall be forwarded to the appropriate auditor or controller for that city, county, or city and county.
(2)Any investigative audit conducted pursuant to this subdivision shall be kept confidential, except to issue any report of an investigation that has been substantiated, or to release any findings resulting from a completed investigation that are deemed necessary to serve the interests of the public. In any event, the identity of the individual or individuals reporting the fraud, waste, or abuse or improper government governmental activity and the subject employee or employees shall be kept confidential.
(3)Notwithstanding paragraph (2), the auditor or controller may provide a copy of a substantiated audit report that includes the identities of the subject employee or employees and other pertinent information concerning the investigation to the appropriate appointing authority for disciplinary purposes. The substantiated audit report, any subsequent investigatory materials or information, and the disposition of any resulting disciplinary proceedings are subject to the confidentiality provisions of applicable local, state, and federal statutes, rules, and regulations.
(f)For purposes of this section, the following definitions apply:
(1)Call means any method of communication by which a person may submit information to the auditor or controller, including, but not limited to, a whistleblower hotline established under this section, that may include in-person notification, telephone call or voicemail, electronic mail, electronic text message, online form submission, facsimile, or other similar means. This paragraph is declaratory of existing law and shall not be construed or interpreted as creating new law or as modifying or changing existing law.
(2)Contractor or subcontractor means a person, firm, corporation, partnership, vendor, or association and its responsible managing officer, as well as any directors, owners, coowners, shareholders, partners, supervisors, managers, employees, and other individuals associated with the contractor or subcontractor who has submitted a bid or proposal; seeks to contract with, contracted with with, or is in a contractual relationship with; or receives funding funding, including, but not limited to, grants from a city, county, or city and county, or nonprofit, agency, commission, or department created by the city, county, or city and county.
(3)Employee means any individual employed by any county, city, or city and county, including any charter city or county, and any school district, community college district, municipal or public corporation, or political subdivision that falls under the auditors or controllers jurisdiction.
(4)Fraud, waste, or abuse or improper governmental activity means any activity by a local agency, employee, or contractor or subcontractor that may be in violation of any local, state, or federal law, ordinance, or regulation relating to corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse or misappropriation of government property, funds, or resources, or willful omission to perform a duty, is economically wasteful, or involves gross misconduct.
(5)Hotline means any method of communication established by a city, county, or a city and county auditor or controller or the auditors or controllers authorized representatives, as directed by a legislative body or the governmental agency that is governed by the city, county, or city and county. This paragraph is declaratory of existing law and shall not be construed or interpreted as creating new law or as modifying or changing existing law.
SEC. 7.The Legislature finds and declares that Section 6 of this act, which amends Section 53087.6 of the Government Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
In order to protect whistleblowers, the California State Auditor or Controller, and any designee of the auditor or controller from undue exposure or retaliation while also protecting the actual and perceived integrity of investigations and preventing malfeasance, it is necessary to preserve the confidentiality of this information.
This bill shall be known, and may be cited, as the Whistleblower Protection Enhancement Act.
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)(1)Employee means either of the following:
(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.
(2)Employee includes a former employee who met the criteria of this subdivision during their employment.
(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.
(c)(1)Improper governmental activity means an activity by a state agency or by an employee 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, directly relates to state government, whether or not that activity is within the scope of their employment, and that meets any of the following criteria:
(A)The activity 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, misuse of state expenditures, including allocations, loans, or grants, or willful omission to perform duty.
(B)The activity 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.
(C)The activity is economically wasteful, involves gross misconduct, incompetency, or inefficiency.
(2)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.
(3)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.
(d)Person means an individual, corporation, trust, association, a state or local government, or an agency or instrumentality of any of the foregoing.
(e)(1)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 either of the following circumstances:
(A)An improper governmental activity.
(B)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.
(2)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.
(3)Protected disclosure also includes, but is not limited to, a complaint made to the Commission on Judicial Performance.
(f)(1)State agency is defined by Section 11000.
(2)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.
(3)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 website 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 website that this information is not required in order to submit an allegation.
(b)Upon receiving specific information that any employee or state agency 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 website 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 the Assembly and Senate budget committees, the Joint Legislative Audit Committee, 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 8547.7 of the Government Code is amended to read:8547.7.(a)If, after investigating an allegation, the California State Auditor finds that a state agency or employee may have engaged or participated in an improper governmental activity, the California State Auditor shall prepare an investigative report and send a copy of the report to the head of the agency involved and to the head of any other agency that has direct oversight over that involved agency. The investigative report may include the California State Auditors recommended actions to prevent the continuation or recurrence of the activity. If appropriate, the California State Auditor shall report this information to the Attorney General, the policy committees of the Senate and Assembly having jurisdiction over the subject involved, the Assembly and Senate budget committees, the Joint Legislative Audit Committee, and to any other authority that the California State Auditor determines appropriate. Subject to the limitations of Section 8547.5, the California State Auditor may provide to the involved agency any evidence gathered during the investigation that, in the judgment of the California State Auditor, is necessary to support any of the recommendations. Within 60 days of receiving the California State Auditors investigative report, the involved agency shall report to the California State Auditor any actions that it has taken or that it intends to take to implement the recommendations. The agency shall file subsequent reports on a monthly basis until final action has been taken.
(b)The California State Auditor shall not have any enforcement power. In any case in which the California State Auditor finds that a state agency or employee may have engaged in an improper governmental activity, the California 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 California State Auditor shall keep confidential every investigation, including, but not limited to, all investigative files and work product, except that the California State Auditor, whenever the California State Auditor determines 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 California State Auditor may release any findings or evidence supporting any findings resulting from an investigation conducted pursuant to this article whenever the California 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. 5.Section 8547.8 of the Government Code is amended to read:8547.8.(a)A state employee or applicant for state employment who files a written complaint with their 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.
(1)The state employee or applicant for state employment shall file their complaint with the board within 12 months of the most recent act of reprisal complained about.
(2)The Notwithstanding paragraph (1), the board may accept the complaint filed by the state employee or applicant for state employment within five years 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 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 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.
SEC. 6.Section 53087.6 of the Government Code is amended to read:53087.6.(a)(1)A city, county, or city and county auditor or controller who is elected to office may maintain a whistleblower hotline to receive calls from persons who have information regarding fraud, waste, or abuse or improper governmental activity.
(2)A city, county, or city and county auditor or controller who is appointed by, or is an employee of, a legislative body or the governmental agency that is governed by the city, county, or city and county, shall obtain approval of that legislative body or the governmental agency, as the case may be, prior to establishing the whistleblower hotline.
(3)A city, county, or city and county auditor or controller may identify a designee within the office responsible for the maintenance of the whistleblower hotline pursuant to this section.
(b)The auditor or controller, or the auditors or controllers designee, may refer calls received on the whistleblower hotline to the appropriate government authority for review and possible investigation.
(c)During the initial review of a call received pursuant to subdivision (a), the auditor or controller, or the auditors or controllers designee, or other appropriate governmental agency, shall hold in confidence information disclosed through the whistleblower hotline, including the identity of the caller disclosing the information and the parties identified by the caller.
(d)A call made to the whistleblower hotline pursuant to subdivision (a), or its referral to an appropriate agency under subdivision (b), may not be the sole basis for a time period under a statute of limitation to commence. This section does not change existing law relating to statutes of limitation.
(e)(1)Upon receiving specific information regarding improper governmental activity, as defined by paragraph (5) of subdivision (f), a city or county auditor or controller, or auditors or controllers designee, 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 that person, unless the disclosure is to a law enforcement agency that is conducting a criminal investigation. If the specific information is in regard to improper government activity that occurred under the jurisdiction of another city, county, or city and county, the information shall be forwarded to the appropriate auditor or controller for that city, county, or city and county.
(2)Any investigative audit conducted pursuant to this subdivision shall be kept confidential, except to issue any report of an investigation that has been substantiated, or to release any findings resulting from a completed investigation that are deemed necessary to serve the interests of the public. In any event, the identity of the individual or individuals reporting the improper government activity and the subject employee or employees shall be kept confidential.
(3)Notwithstanding paragraph (2), the auditor or controller may provide a copy of a substantiated audit report that includes the identities of the subject employee or employees and other pertinent information concerning the investigation to the appropriate appointing authority for disciplinary purposes. The substantiated audit report, any subsequent investigatory materials or information, and the disposition of any resulting disciplinary proceedings are subject to the confidentiality provisions of applicable local, state, and federal statutes, rules, and regulations.
(f)For purposes of this section, the following definitions apply:
(1)Call means any method of communication by which a person may submit information to the auditor or controller, including, but not limited to, a whistleblower hotline established under this section, that may include in-person notification, telephone call or voicemail, electronic mail, electronic text message, online form submission, facsimile, or other similar means. This paragraph is declaratory of existing law and shall not be construed or interpreted as creating new law or as modifying or changing existing law.
(2)Contractor or subcontractor means a person, firm, corporation, partnership, vendor, or association and its responsible managing officer, as well as any directors, owners, coowners, shareholders, partners, supervisors, managers, employees, and other individuals associated with the contractor or subcontractor who has submitted a bid or proposal; seeks to contract with, contracted with or is in a contractual relationship with; or receives funding including, but not limited to, grants from a city, county, or city and county, or nonprofit, agency, commission, or department created by the city, county, or city and county.
(3)Employee means any individual employed by any county, city, or city and county, including any charter city or county, and any school district, community college district, municipal or public corporation, or political subdivision that falls under the auditors or controllers jurisdiction.
(4)Fraud, waste, or abuse or improper governmental activity means any activity by a local agency, employee, or contractor or subcontractor that may be in violation of any local, state, or federal law, ordinance, or regulation relating to corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse or misappropriation of government property, funds, or resources, or willful omission to perform a duty, is economically wasteful, or involves gross misconduct.
(4)(5)Hotline means any method of communication established by a city, county, or a city and county auditor or controller or the auditors or controllers authorized representatives, as directed by a legislative body or the governmental agency that is governed by the city, county, or city and county. This paragraph is declaratory of existing law and shall not be construed or interpreted as creating new law or as modifying or changing existing law.
(5)Improper governmental activity means any activity by a local agency, employee, or contractor or subcontractor that may be in violation of any local, state, or federal law, ordinance, or regulation relating to fraud, waste, abuse, corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse or misappropriation of government property, funds, or resources, or willful omission to perform a duty, is economically wasteful, or involves gross misconduct.SEC. 7.The Legislature finds and declares that Section 6 of this act, which amends Section 53087.6 of the Government Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
In order to protect whistleblowers, the California State Auditor or Controller, and any designee of the auditor or controller from undue exposure or retaliation while also protecting the actual and perceived integrity of investigations and preventing malfeasance, it is necessary to preserve the confidentiality of this information.
This bill shall be known, and may be cited, as the Whistleblower Protection Enhancement Act.
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)(1)Employee means either of the following:
(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.
(2)Employee includes a former employee who met the criteria of this subdivision during their employment.
(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.
(c)(1)Improper governmental activity means an activity by a state agency or by an employee 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, directly relates to state government, whether or not that activity is within the scope of their employment, and that meets any of the following criteria:
(A)The activity 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, misuse of state expenditures, including allocations, loans, or grants, or willful omission to perform duty.
(B)The activity 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.
(C)The activity is economically wasteful, involves gross misconduct, incompetency, or inefficiency.
(2)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.
(3)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.
(d)Person means an individual, corporation, trust, association, a state or local government, or an agency or instrumentality of any of the foregoing.
(e)(1)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 either of the following circumstances:
(A)An improper governmental activity.
(B)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.
(2)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.
(3)Protected disclosure also includes, but is not limited to, a complaint made to the Commission on Judicial Performance.
(f)(1)State agency is defined by Section 11000.
(2)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.
(3)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 website 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 website that this information is not required in order to submit an allegation.
(b)Upon receiving specific information that any employee or state agency 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 website 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 the Assembly and Senate budget committees, the Joint Legislative Audit Committee, 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 8547.7 of the Government Code is amended to read:8547.7.(a)If, after investigating an allegation, the California State Auditor finds that a state agency or employee may have engaged or participated in an improper governmental activity, the California State Auditor shall prepare an investigative report and send a copy of that the report to the head of the agency involved and to the head of any other agency that has direct oversight over that involved agency. The investigative report may include the California State Auditors recommended actions to prevent the continuation or recurrence of the activity. If appropriate, the California State Auditor shall report this information to the Attorney General, the policy committees of the Senate and Assembly having jurisdiction over the subject involved, the Assembly and Senate budget committees, the Joint Legislative Audit Committee, and to any other authority that the California State Auditor determines appropriate. Subject to the limitations of Section 8547.5, the California State Auditor may provide to the involved agency any evidence gathered during the investigation that, in the judgment of the California State Auditor, is necessary to support any of the recommendations. Within 60 days of receiving the California State Auditors investigative report, the involved agency shall report to the California State Auditor any actions that it has taken or that it intends to take to implement the recommendations. The agency shall file subsequent reports on a monthly basis until final action has been taken.
(b)The California State Auditor shall not have any enforcement power. In any case in which the California State Auditor finds that a state agency or employee may have engaged in an improper governmental activity, the California 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 California State Auditor shall keep confidential every investigation, including, but not limited to, all investigative files and work product, except that the California State Auditor, whenever the California State Auditor determines 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 California State Auditor may release any findings or evidence supporting any findings resulting from an investigation conducted pursuant to this article whenever the California 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. 5.Section 8547.8 of the Government Code is amended to read:8547.8.(a)A state employee or applicant for state employment who files a written complaint with their 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.
(1)The state employee or applicant for state employment shall file their complaint with the board within 12 months of the most recent act of reprisal complained about.
(2)The board may accept the complaint filed by the state employee or applicant for state employment within five years 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 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 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.
SEC. 6.Section 53087.6 of the Government Code is amended to read:53087.6.(a)(1)A city, county, or city and county auditor or controller who is elected to office may maintain a whistleblower hotline to receive calls from persons who have information regarding improper governmental activity.
(2)A city, county, or city and county auditor or controller who is appointed by, or is an employee of, a legislative body or the governmental agency that is governed by the city, county, or city and county, shall obtain approval of that legislative body or the governmental agency, as the case may be, prior to establishing the whistleblower hotline.
(3)A city, county, or city and county auditor or controller may identify a designee within the office responsible for the maintenance of the whistleblower hotline pursuant to this section.
(b)The auditor or controller, or the auditors or controllers designee, may refer calls received on the whistleblower hotline to the appropriate government authority for review and possible investigation.
(c)During the initial review of a call received pursuant to subdivision (a), the auditor or controller, or the auditors or controllers designee, or other appropriate governmental agency, shall hold in confidence information disclosed through the whistleblower hotline, including the identity of the caller disclosing the information and the parties identified by the caller.
(d)A call made to the whistleblower hotline pursuant to subdivision (a), or its referral to an appropriate agency under subdivision (b), may not be the sole basis for a time period under a statute of limitation to commence. This section does not change existing law relating to statutes of limitation.
(e)(1)Upon receiving specific information regarding improper governmental activity, as defined by paragraph (5) of subdivision (f), a city or county auditor or controller, or auditors or controllers designee, 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 that person, unless the disclosure is to a law enforcement agency that is conducting a criminal investigation. If the specific information is in regard to improper government activity that occurred under the jurisdiction of another city, county, or city and county, the information shall be forwarded to the appropriate auditor or controller for that city, county, or city and county.
(2)Any investigative audit conducted pursuant to this subdivision shall be kept confidential, except to issue any report of an investigation that has been substantiated, or to release any findings resulting from a completed investigation that are deemed necessary to serve the interests of the public. In any event, the identity of the individual or individuals reporting the improper government activity and the subject employee or employees shall be kept confidential.
(3)Notwithstanding paragraph (2), the auditor or controller may provide a copy of a substantiated audit report that includes the identities of the subject employee or employees and other pertinent information concerning the investigation to the appropriate appointing authority for disciplinary purposes. The substantiated audit report, any subsequent investigatory materials or information, and the disposition of any resulting disciplinary proceedings are subject to the confidentiality provisions of applicable local, state, and federal statutes, rules, and regulations.
(f)For purposes of this section, the following definitions apply:
(1)Call means any method of communication by which a person may submit information to the auditor or controller, including, but not limited to, a whistleblower hotline established under this section, that may include in-person notification, telephone call or voicemail, electronic mail, electronic text message, online form submission, facsimile, or other similar means. This paragraph is declaratory of existing law and shall not be construed or interpreted as creating new law or as modifying or changing existing law.
(2)Contractor or subcontractor means a person, firm, corporation, partnership, vendor, or association and its responsible managing officer, as well as any directors, owners, coowners, shareholders, partners, supervisors, managers, employees, and other individuals associated with the contractor or subcontractor who has submitted a bid or proposal; seeks to contract with, contracted with or is in a contractual relationship with; or receives funding including, but not limited to, grants from a city, county, or city and county, or nonprofit, agency, commission, or department created by the city, county, or city and county.
(3)Employee means any individual employed by any county, city, or city and county, including any charter city or county, and any school district, community college district, municipal or public corporation, or political subdivision that falls under the auditors or controllers jurisdiction.
(4)Hotline means any method of communication established by a city, county, or a city and county auditor or controller or the auditors or controllers authorized representatives, as directed by a legislative body or the governmental agency that is governed by the city, county, or city and county. This paragraph is declaratory of existing law and shall not be construed or interpreted as creating new law or as modifying or changing existing law.
(5)Improper governmental activity means any activity by a local agency, employee, or contractor or subcontractor that may be in violation of any local, state, or federal law, ordinance, or regulation relating to fraud, waste, abuse, corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse or misappropriation of government property, funds, or resources, or willful omission to perform a duty, is economically wasteful, or involves gross misconduct.
SEC. 7.The Legislature finds and declares that Section 6 of this act, which amends Section 53087.6 of the Government Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
In order to protect whistleblowers, the California State Auditor or Controller, and any designee of the auditor or controller from undue exposure or retaliation while also protecting the actual and perceived integrity of investigations and preventing malfeasance, it is necessary to preserve the confidentiality of this information.
This bill shall be known, and may be cited, as the Whistleblower Protection Enhancement Act.
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)(1)Employee means either of the following:
(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.
(2)Employee includes a former employee who met the criteria of this subdivision during their employment.
(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.
(c)(1)Improper governmental activity means an activity by a state agency or by an employee 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, directly relates to state government, whether or not that activity is within the scope of their employment, and that meets any of the following criteria:
(A)The activity 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, misuse of state expenditures, including allocations, loans, or grants, or willful omission to perform duty.
(B)The activity 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.
(C)The activity is economically wasteful, involves gross misconduct, incompetency, or inefficiency.
(2)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.
(3)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.
(d)Person means an individual, corporation, trust, association, a state or local government, or an agency or instrumentality of any of the foregoing.
(e)(1)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 either of the following circumstances:
(A)An improper governmental activity.
(B)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.
(2)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.
(3)Protected disclosure also includes, but is not limited to, a complaint made to the Commission on Judicial Performance.
(f)(1)State agency is defined by Section 11000.
(2)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.
(3)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 website 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 website that this information is not required in order to submit an allegation.
(b)Upon receiving specific information that any employee or state agency 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 website 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 the Assembly and Senate budget committees, the Joint Legislative Audit Committee, 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 8547.7 of the Government Code is amended to read:8547.7.(a)If, after investigating an allegation, the California State Auditor finds that a state agency or employee may have engaged or participated in an improper governmental activity, the California State Auditor shall 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. The investigative report may include the California State Auditors recommended actions to prevent the continuation or recurrence of the activity. If appropriate, the California State Auditor shall report this information to the Attorney General, the policy committees of the Senate and Assembly having jurisdiction over the subject involved, the Assembly and Senate budget committees, the Joint Legislative Audit Committee, and to any other authority that the California State Auditor determines appropriate. Subject to the limitations of Section 8547.5, the California State Auditor may provide to the involved agency any evidence gathered during the investigation that, in the judgment of the California State Auditor, is necessary to support any of the recommendations. Within 60 days of receiving the California State Auditors investigative report, the involved agency shall report to the California State Auditor any actions that it has taken or that it intends to take to implement the recommendations. The agency shall file subsequent reports on a monthly basis until final action has been taken.
(b)The California State Auditor shall not have any enforcement power. In any case in which the California State Auditor finds that a state agency or employee may have engaged in an improper governmental activity, the California 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 California State Auditor shall keep confidential every investigation, including, but not limited to, all investigative files and work product, except that the California State Auditor, whenever the California State Auditor determines 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 California State Auditor may release any findings or evidence supporting any findings resulting from an investigation conducted pursuant to this article whenever the California 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. 5.Section 8547.8 of the Government Code is amended to read:8547.8.(a)A state employee or applicant for state employment who files a written complaint with their 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.
(1)The state employee or applicant for state employment shall file their complaint with the board within 12 months of the most recent act of reprisal complained about.
(2)The board may accept the complaint filed by the state employee or applicant for state employment within five years 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 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 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.
SEC. 6.Section 53087.6 of the Government Code is amended to read:53087.6.(a)(1)A city, county, or city and county auditor or controller who is elected to office may maintain a whistleblower hotline to receive calls from persons who have information regarding improper governmental activity.
(2)A city, county, or city and county auditor or controller who is appointed by, or is an employee of, a legislative body or the governmental agency that is governed by the city, county, or city and county, shall obtain approval of that legislative body or the governmental agency, as the case may be, prior to establishing the whistleblower hotline.
(3)A city, county, or city and county auditor or controller may identify a designee within the office responsible for the maintenance of the whistleblower hotline pursuant to this section.
(b)The auditor or controller, or the auditors or controllers designee, may refer calls received on the whistleblower hotline to the appropriate government authority for review and possible investigation.
(c)During the initial review of a call received pursuant to subdivision (a), the auditor or controller, or the auditors or controllers designee, or other appropriate governmental agency, shall hold in confidence information disclosed through the whistleblower hotline, including the identity of the caller disclosing the information and the parties identified by the caller.
(d)A call made to the whistleblower hotline pursuant to subdivision (a), or its referral to an appropriate agency under subdivision (b), may not be the sole basis for a time period under a statute of limitation to commence. This section does not change existing law relating to statutes of limitation.
(e)(1)Upon receiving specific information regarding improper governmental activity, as defined by paragraph (5) of subdivision (f), a city or county auditor or controller, or auditors or controllers designee, 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 that person, unless the disclosure is to a law enforcement agency that is conducting a criminal investigation. If the specific information is in regard to improper government activity that occurred under the jurisdiction of another city, county, or city and county, the information shall be forwarded to the appropriate auditor or controller for that city, county, or city and county.
(2)Any investigative audit conducted pursuant to this subdivision shall be kept confidential, except to issue any report of an investigation that has been substantiated, or to release any findings resulting from a completed investigation that are deemed necessary to serve the interests of the public. In any event, the identity of the individual or individuals reporting the improper government activity and the subject employee or employees shall be kept confidential.
(3)Notwithstanding paragraph (2), the auditor or controller may provide a copy of a substantiated audit report that includes the identities of the subject employee or employees and other pertinent information concerning the investigation to the appropriate appointing authority for disciplinary purposes. The substantiated audit report, any subsequent investigatory materials or information, and the disposition of any resulting disciplinary proceedings are subject to the confidentiality provisions of applicable local, state, and federal statutes, rules, and regulations.
(f)For purposes of this section, the following definitions apply:
(1)Call means any method of communication by which a person may submit information to the auditor or controller, including, but not limited to, a whistleblower hotline established under this section, that may include in-person notification, telephone call or voicemail, electronic mail, electronic text message, online form submission, facsimile, or other similar means. This paragraph is declaratory of existing law and shall not be construed or interpreted as creating new law or as modifying or changing existing law.
(2)Contractor or subcontractor means a person, firm, corporation, partnership, vendor, or association and its responsible managing officer, as well as any directors, owners, co-owners, coowners, shareholders, partners, supervisors, managers, employees, and other individuals associated with the contractor or subcontractor who has submitted a bid or proposal; seeks to contract with, contracted with or is in a contractual relationship with; or receives funding including, but not limited to, grants from a city, county, or city and county, or nonprofit, agency, commission, or department created by the city, county, or city and county.
(3)Employee means any individual employed by any county, city, or city and county, including any charter city or county, and any school district, community college district, municipal or public corporation, or political subdivision that falls under the auditors or controllers jurisdiction.
(4)Hotline means any method of communication established by a city, county, or a city and county auditor or controller or the auditors or controllers authorized representatives, as directed by a legislative body or the governmental agency that is governed by the city, county, or city and county. This paragraph is declaratory of existing law and shall not be construed or interpreted as creating new law or as modifying or changing existing law.
(5)Improper governmental activity means any activity by a local agency, employee, or contractor or subcontractor that may be in violation of any local, state, or federal law, ordinance, or regulation relating to fraud, waste, abuse, corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse or misappropriation of government property, funds, or resources, or willful omission to perform a duty, is economically wasteful, or involves gross misconduct.
SEC. 7.The Legislature finds and declares that Section 6 of this act, which amends Section 53087.6 of the Government Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
In order to protect whistleblowers, the California State Auditor or Controller, and any designee of the auditor or controller from undue exposure or retaliation while also protecting the actual and perceived integrity of investigations and preventing malfeasance, it is necessary to preserve the confidentiality of this information.
This bill shall be known, and may be cited, as the Whistleblower Protection Enhancement Act.
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)Employee (1)Employee means an individual either of the following:
(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 addition, employee means a
(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. Employee
(2)Employee includes a former employee who met the criteria of this subdivision during his or her their employment.
(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.
(c)Improper (1)Improper governmental activity means an activity by a state agency or by an employee 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, directly relates to state government, whether or not that activity is within the scope of his or her their employment, and that (1) meets any of the following criteria:
(A)The activity 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, property, misuse of state expenditures, including allocations, loans, or grants, or willful omission to perform duty, (2) duty.
(B)The activity 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) Manual.
(C)The activity is economically wasteful, involves gross misconduct, incompetency, or inefficiency. For
(2)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
(3)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.
(d)Person means an individual, corporation, trust, association, a state or local government, or an agency or instrumentality of any of the foregoing.
(e)Protected (1)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 either of the following circumstances:
(A)An improper governmental activity, or (2) a activity.
(B)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
(2)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
(3)Protected disclosure also includes, but is not limited to, a complaint made to the Commission on Judicial Performance.
(f)State (1)State agency is defined by Section 11000. State
(2)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
(3)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 internet website 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 internet website that this information is not required in order to submit an allegation.
(b)Upon receiving specific information that any employee or state agency 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 internet website 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, the Assembly and Senate budget committees, the Joint Legislative Audit Committee, 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 8547.7 of the Government Code is amended to read:8547.7.(a)If, after investigating an allegation, the California State Auditor finds that a state agency or employee may have engaged or participated in an improper governmental activity, he or she the California State Auditor shall 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. The investigative report may include the California State Auditors recommended actions to prevent the continuation or recurrence of the activity. If appropriate, the California State Auditor shall report this information to the Attorney General, the policy committees of the Senate and Assembly having jurisdiction over the subject involved, the Assembly and Senate budget committees, the Joint Legislative Audit Committee, and to any other authority that the California State Auditor determines appropriate. Subject to the limitations of Section 8547.5, the California State Auditor may provide to the involved agency any evidence gathered during the investigation that, in the judgment of the California State Auditor, is necessary to support any of the recommendations. Within 60 days of receiving the California State Auditors investigative report, the involved agency shall report to the California State Auditor any actions that it has taken or that it intends to take to implement the recommendations. The agency shall file subsequent reports on a monthly basis until final action has been taken.
(b)The California State Auditor shall not have any enforcement power. In any case in which the California State Auditor finds that a state agency or employee may have engaged in an improper governmental activity, the California 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 California State Auditor shall keep confidential every investigation, including, but not limited to, all investigative files and work product, except that the California State Auditor, whenever he or she the California State Auditor determines 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 California State Auditor may release any findings or evidence supporting any findings resulting from an investigation conducted pursuant to this article whenever the California 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. 5.Section 8547.8 of the Government Code is amended to read:8547.8.(a)A state employee or applicant for state employment who files a written complaint with his or her their 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
(1)The state employee or applicant for state employment shall file their complaint with the board within 12 months of the most recent act of reprisal complained about.
(2)The board may accept the complaint filed by the state employee or applicant for state employment within five years 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 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 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.
SEC. 6.Section 53087.6 of the Government Code is amended to read:53087.6.(a)(1)A city, county, or city and county auditor or controller who is elected to office may maintain a whistleblower hotline to receive calls from persons who have information regarding fraud, waste, or abuse by local government employees. improper governmental activity.
(2)A city, county, or city and county auditor or controller who is appointed by, or is an employee of, a legislative body or the government governmental agency that is governed by the city, county, or city and county, shall obtain approval of that legislative body or the government governmental agency, as the case may be, prior to establishing the whistleblower hotline.
(b)The auditor or controller controller, or the auditors or controllers designee, may refer calls received on the whistleblower hotline to the appropriate government authority for review and possible investigation.
(c)During the initial review of a call received pursuant to subdivision (a), the auditor or controller, controller, or the auditors or controllers designee, or other appropriate governmental agency, shall hold in confidence information disclosed through the whistleblower hotline, including the identity of the caller disclosing the information and the parties identified by the caller.
(d)A call made to the whistleblower hotline pursuant to subdivision (a), or its referral to an appropriate agency under subdivision (b), may not be the sole basis for a time period under a statute of limitation to commence. This section does not change existing law relating to statutes of limitation.
(e)(1)Upon receiving specific information that an employee or local government has engaged in an regarding improper government governmental activity, as defined by paragraph (2) (5) of subdivision (f), a city or county auditor or controller controller, or auditors or controllers designee, 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 that person, unless the disclosure is to a law enforcement agency that is conducting a criminal investigation. If the specific information is in regard to improper government activity that occurred under the jurisdiction of another city, county, or city and county, the information shall be forwarded to the appropriate auditor or controller for that city, county, or city and county.
(2)Any investigative audit conducted pursuant to this subdivision shall be kept confidential, except to issue any report of an investigation that has been substantiated, or to release any findings resulting from a completed investigation that are deemed necessary to serve the interests of the public. In any event, the identity of the individual or individuals reporting the improper government activity and the subject employee or employees shall be kept confidential.
(3)Notwithstanding paragraph (2), the auditor or controller may provide a copy of a substantiated audit report that includes the identities of the subject employee or employees and other pertinent information concerning the investigation to the appropriate appointing authority for disciplinary purposes. The substantiated audit report, any subsequent investigatory materials or information, and the disposition of any resulting disciplinary proceedings are subject to the confidentiality provisions of applicable local, state, and federal statutes, rules, and regulations.
(f)(1)For purposes of this section, employee the following definitions apply:
(1)Call means any method of communication by which a person may submit information to the auditor or controller, including, but not limited to, a whistleblower hotline established under this section, that may include in-person notification, telephone call or voicemail, electronic mail, electronic text message, online form submission, facsimile, or other similar means. This paragraph is declaratory of existing law and shall not be construed or interpreted as creating new law or as modifying or changing existing law.
(2)Contractor or subcontractor means a person, firm, corporation, partnership, vendor, or association and its responsible managing officer, as well as any directors, owners, co-owners, shareholders, partners, supervisors, managers, employees, and other individuals associated with the contractor or subcontractor who has submitted a bid or proposal; seeks to contract with, contracted with or is in a contractual relationship with; or receives funding including, but not limited to, grants from a city, county, or city and county, or nonprofit, agency, commission, or department created by the city, county, or city and county.
(3)Employee means any individual employed by any county, city, or city and county, including any charter city or county, and any school district, community college district, municipal or public corporation, or political subdivision that falls under the auditors or controllers jurisdiction.
(4)Hotline means any method of communication established by a city, county, or a city and county auditor or controller or the auditors or controllers authorized representatives, as directed by a legislative body or the governmental agency that is governed by the city, county, or city and county. This paragraph is declaratory of existing law and shall not be construed or interpreted as creating new law or as modifying or changing existing law.
(2)For purposes of this section, fraud, waste, or abuse(5)Improper governmental activity means any activity by a local agency or employee that is undertaken in the performance of the employees official duties, including activities deemed to be outside the scope of his or her employment, agency, employee, or contractor or subcontractor that is may be in violation of any local, state, or federal law law, ordinance, or regulation relating to fraud, waste, abuse, corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse or misappropriation of government property, funds, or resources, or willful omission to perform duty, is economically wasteful, or involves gross misconduct.
SEC. 7.The Legislature finds and declares that Section 6 of this act, which amends Section 53087.6 of the Government Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
In order to protect whistleblowers, the California State Auditor or Controller, and any designee of the auditor or controller from undue exposure or retaliation while also protecting the actual and perceived integrity of investigations and preventing malfeasance, it is necessary to preserve the confidentiality of this information.
SECTION 1.Section 66540.6 of the Government Code is amended to read:66540.6.(a)In order to establish and secure emergency activities of all water transportation and related facilities within the bay area region, the authority shall have the authority to operate a comprehensive emergency public water transportation system that includes water transportation services, water transit terminals, and any other transport and facilities supportive of the system for the bay area region, provided that those facilities are consistent with the bay plan adopted by the San Francisco Bay Conservation and Development Commission, as it may be amended from time to time, and that the authority consults in good faith with affected municipalities, counties, and other public agencies that may be affected by a particular facility. The authority shall have authority and control over public transportation ferries within the bay area region, except that this section shall not affect any vessels, facilities, or services owned, operated, or provided by the Golden Gate Bridge, Highway and Transportation District. The planning, management, and operation of any existing or planned public transportation ferries and related facilities and services in the bay area region shall be consolidated under the authoritys control, subject to the adoption of the transition plan required by subdivision (b) of Section 66540.32. The authority shall not compel property transfers or operational changes to water transportation services provided by public agencies on or before January 1, 2008, before the adoption of that transition plan.(b)Because of the importance of an orderly development of a comprehensive bay area region emergency water transportation system, the environmental, health, and public safety issues implicated, and the scarce resources available, the authority shall determine the entry within its jurisdiction of any water transportation service or facility that will affect public lands or receive or benefit from the use of federal, state, or local funds, except those owned, operated, or provided by the Golden Gate Bridge, Highway and Transportation District.(c)Nothing in this section shall be construed to be in derogation of the existing authority of the Public Utilities Commission.(a)In order to establish and secure emergency activities of all water transportation and related facilities within the bay area region, the authority shall have the authority to operate a comprehensive emergency public water transportation system that includes water transportation services, water transit terminals, and any other transport and facilities supportive of the system for the bay area region, provided that those facilities are consistent with the bay plan adopted by the San Francisco Bay Conservation and Development Commission, as it may be amended from time to time, and that the authority consults in good faith with affected municipalities, counties, and other public agencies that may be affected by a particular facility. The authority shall have authority and control over public transportation ferries within the bay area region, except that this section shall not affect any vessels, facilities, or services owned, operated, or provided by the Golden Gate Bridge, Highway and Transportation District. The planning, management, and operation of any existing or planned public transportation ferries and related facilities and services in the bay area region shall be consolidated under the authoritys control, subject to the adoption of the transition plan required by subdivision (b) of Section 66540.32. The authority shall not compel property transfers or operational changes to water transportation services provided by public agencies on or before January 1, 2008, prior to before the adoption of that transition plan.
(b)Because of the importance of an orderly development of a comprehensive bay area region emergency water transportation system, the environmental, health, and public safety issues implicated, and the scarce resources available, the authority shall determine the entry within its jurisdiction of any water transportation service or facility that will affect public lands or receive or benefit from the use of federal, state, or local funds, except those owned, operated, or provided by the Golden Gate Bridge, Highway and Transportation District.
(c)Nothing in this section shall be construed to be in derogation of the existing authority of the California Public Utilities Commission.
|
Date
|
Status
|
|---|---|
| Sep 25, 2024 | Chaptered by Secretary of State - Chapter 568, Statutes of 2024. |
| Sep 25, 2024 | Approved by the Governor. |
| Sep 13, 2024 | Enrolled and presented to the Governor at 4 p.m. |
| Aug 31, 2024 | Senate amendments concurred in. To Engrossing and Enrolling. (Ayes 77. Noes 0.). |
| Aug 30, 2024 | In Assembly. Concurrence in Senate amendments pending. |
| Aug 30, 2024 | Read third time. Passed. Ordered to the Assembly. (Ayes 40. Noes 0.). |
| Aug 26, 2024 | Ordered to special consent calendar. |
| Aug 19, 2024 | Read second time. Ordered to third reading. |
| Aug 15, 2024 | Read second time and amended. Ordered returned to second reading. |
| Aug 15, 2024 | From committee: Amend, and do pass as amended. (Ayes 7. Noes 0.) (August 15). |
| Aug 5, 2024 | In committee: Referred to APPR suspense file. |
| Jun 27, 2024 | Read second time and amended. Re-referred to Com. on APPR. |
| Jun 26, 2024 | From committee: Amend, and do pass as amended and re-refer to Com. on APPR with recommendation: To Consent Calendar. (Ayes 7. Noes 0.) (June 26). |
| Jun 13, 2024 | Read second time and amended. Re-referred to Com. on L. GOV. |
| Jun 12, 2024 | From committee: Amend, and do pass as amended and re-refer to Com. on L. GOV. with recommendation: To Consent Calendar. (Ayes 11. Noes 0.) (June 11). |
| Jun 3, 2024 | From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on JUD. |
| May 22, 2024 | Referred to Coms. on JUD. and L. GOV. |
| May 9, 2024 | In Senate. Read first time. To Com. on RLS. for assignment. |
| May 9, 2024 | Read third time. Passed. Ordered to the Senate. (Ayes 65. Noes 0. Page 5159.) |
| May 2, 2024 | Read second time. Ordered to Consent Calendar. |
| May 1, 2024 | From committee: Do pass. To Consent Calendar. (Ayes 14. Noes 0.) (May 1). |
| Apr 17, 2024 | From committee: Do pass and re-refer to Com. on APPR. with recommendation: To Consent Calendar. (Ayes 7. Noes 0.) (April 17). Re-referred to Com. on APPR. |
| Apr 9, 2024 | From committee: Do pass and re-refer to Com. on P.E. & R. with recommendation: To Consent Calendar. (Ayes 12. Noes 0.) (April 9). Re-referred to Com. on P.E. & R. |
| Apr 8, 2024 | Re-referred to Com. on JUD. |
| Apr 4, 2024 | From committee chair, with author's amendments: Amend, and re-refer to Com. on JUD. Read second time and amended. |
| Apr 1, 2024 | Re-referred to Com. on JUD. |
| Mar 21, 2024 | Referred to Coms. on JUD. and P.E. & R. |
| Mar 21, 2024 | From committee chair, with author's amendments: Amend, and re-refer to Com. on JUD. Read second time and amended. |
| Feb 14, 2024 | From printer. May be heard in committee March 15. |
| Feb 13, 2024 | Read first time. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Aug 31, 2024 | AB 2455 Gabriel Concurrence in Senate Amendments | Assembly Floor |
Passed |
|
| Aug 30, 2024 | Special Consent AB2455 Gabriel et al. By Blakespear | Senate Floor |
Passed |
|
| Aug 15, 2024 | Do pass as amended | Senate Standing Committee on Appropriations |
Passed |
|
| Aug 5, 2024 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Jun 26, 2024 | Do pass as amended, but first amend, and re-refer to the Committee on [Appropriations] with the recommendation: To Consent Calendar | Senate Standing Committee on Local Government |
Passed |
|
| Jun 11, 2024 | Do pass as amended, but first amend, and re-refer to the Committee on [Local Government] with the recommendation: To Consent Calendar | Senate Standing Committee on Judiciary |
Passed |
|
| May 9, 2024 | AB 2455 Gabriel Consent Calendar Second Day Regular Session | Assembly Floor |
Passed |
|
| May 1, 2024 | Do pass. To Consent Calendar. | Assembly Standing Committee on Appropriations |
Passed |
|
| Apr 17, 2024 | Do pass and be re-referred to the Committee on [Appropriations] with recommendation: To Consent Calendar | Assembly Standing Committee on Public Employment and Retirement |
Passed |
|
| Apr 9, 2024 | Do pass and be re-referred to the Committee on [Public Employment and Retirement] with recommendation: To Consent Calendar | Assembly Standing Committee on Judiciary |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| California State Association Of Counties | ** Support | |
| Consumer Watchdog | ** Support | |
| County Of Los Angeles | ** Support | |
| Little Hoover Commission | ** Support | |
| Los Angeles County Board of Supervisors | ** Support | |
| Rural County Representatives of California | ** Support | |
| San Francisco Bay Area Planning and Urban Research Association | ** Support | |
| State Association Of County Auditors | ** Support | |
| Urban Counties of California | ** Support |
CONCURRENCE IN SENATE AMENDMENTS
CSA1 Bill Id:AB 2455
Author:(Gabriel)
As Amended Ver:August 15, 2024
Majority vote
SUMMARY
Expands and modernizes California's whistleblower protection laws.
Major Provisions
- Identifies the provisions of this bill as the Whistleblower Protection Enhancement Act.
- Requires an independent investigator, upon determination that it is appropriate, to provide a confidential report detailing the facts supporting a conclusion that an employee engaged or participated in improper governmental activities, to the Assembly and Senate Budget Committees and the Joint Legislative Audit Committee.
- Requires the State Auditor, upon determination that it is appropriate, to provide an investigative report regarding a finding that a state agency or employee may have engaged or participated in an improper governmental activity to the Assembly and Senate Budget Committees and Joint Legislative Audit Committee.
- Authorizes a city, county, or city and county auditor or controller who is elected to office to maintain a whistleblower hotline to receive calls from persons who have information regarding improper governmental activity.
- Authorizes a city, county, or city and county auditor or controller to identify a designee within the office responsible for maintenance of the whistleblower hotline.
- Makes conforming changes to the responsibilities of the auditor or controller who identifies a designee.
- Defines, for the purposes of 4) – 5) the following terms:
- "Call" means any method of communication by which a person may submit information to the auditor or controller, including, but not limited to, a whistleblower hotline, that may include in-person notification, telephone call or voicemail, electronic mail, electronic text message, online form submission, facsimile, or other similar means.
- Clarifies that this definition is declaratory of existing law and shall not be construed or interpreted as creating new law or as modifying or changing existing law.
- "Contractor or subcontractor" means a person, firm, corporation, partnership, vendor, or association and its responsible managing officer, as well as any directors, owners, co-owners, shareholders, partners, supervisors, managers, employees, and other individuals associated with the contractor or subcontractor who has submitted a bid or proposal; seeks to contract with, contracted with or is in a contractual relationship with; or receives funding including but not limited to, grants from a city, county, or city and county, or nonprofit, agency, commission, or department created by the city, county, or city and county.
- "Hotline" means any method of communication established by a city, county, or a city and county auditor or controller or the auditor's or controller's authorized representatives, as directed by a legislative body or the governmental agency that is governed by the city, county, or city and county. Specifies that this definition is declaratory of existing law and shall not be construed or interpreted as creating new law or as modifying or changing existing law.
- Redefines "fraud, waste, or abuse" as any activity by a local agency, employee, or contractor or subcontractor that may be in violation of any local, state, or federal law, ordinance, or regulation relating to corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse or misappropriation of government property, funds, or resources, or willful omission to perform a duty, is economically wasteful, or involves gross misconduct.
- "Call" means any method of communication by which a person may submit information to the auditor or controller, including, but not limited to, a whistleblower hotline, that may include in-person notification, telephone call or voicemail, electronic mail, electronic text message, online form submission, facsimile, or other similar means.
Senate Amendments
- Clarify the definition of fraud, waste, and abuse.
- Delete provisions related to the State Personnel Board.
- Clarify the role of local agencies receiving reports of fraud, waste, or abuse.
- Add a co-author.
COMMENTS
This bill seeks to modernize the California Whistleblower Protection Act (CWPA) and whistleblower hotline laws in order to enhance their efficacy. The California Whistleblower Protection Act (CWPA) authorizes the State Auditor to receive and investigate complaints of alleged improper governmental activities, and also protects every state employee who files a complaint from suffering any retaliation by their state employer for having made the complaint. (Government Code Section 8547 et seq.) State employees, internal auditors of state agencies, and any persons obtaining services from the State, including contractors who do business with the state and job applicants, may file a complaint under the CWPA with the State Auditor.
Existing law also authorizes local governments to maintain a whistleblower hotline to receive reports of "fraud, waste, or abuse by local government employees." (Government Code Section 53087.6(a)(1).) The statute further authorizes the auditor or controller of the local jurisdiction to refer calls received on the hotline to the appropriate government authority for review and possible investigation. (Government Code Section 53087.6(b).)
This bill modernizes whistleblower statutes in five ways.
First, the CWPA currently defines "improper governmental activities" as an activity by a state agency or an employee done as part of the employee's duties, inside a state office, or, if undertaken outside a state office by the employee, relates to state government, whether or not it is within the scope of their employment and is a 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 a duty. (Government Code Section 8547.2 (c).) Put more succinctly, an "improper governmental activity" refers to an action by an agency or employee that violates a state or federal law such as corruption, bribery, or misuse of government property. AB 2455 expands the definition of "improper governmental activity" to include the misuse of state expenditures, including allocations, loans, or grants. This change to existing law seems a logical approach to ensuring that any misuse of state dollars, whether the improper use was carried out by a government agency or a grant recipient, is subject to the CWPA.
Second, existing law authorizes the State Auditor's Office (SAO) to conduct an independent investigation of alleged improper governmental activity. Existing law also authorizes 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." In both circumstances, existing law authorizes the SAO or independent investigator to report the results of their investigation to the Attorney General and policy committees of the Senate and Assembly with jurisdiction over the subject. (Government Code Section 8547.5(c)(1) – (2).) In order to increase legislative oversight over findings regarding improper governmental activity, this bill would authorize the SAO or independent investigator to report their findings to the Assembly and Senate Budget Committees and the Joint Legislative Audit Committee, if they determine it to be appropriate.
Third, existing law authorizes local governments to maintain a whistleblower hotline to receive calls from individuals who have information regarding "fraud, waste, or abuse by local government employees" and establishes procedures for administering the hotline and responding to reports of misconduct. (Government Code Section 53087.6 et seq.) This bill proposes two changes to these provisions. First, the bill strikes reference to "fraud, waste, or abuse by local government employees," and updates the definition to mean any activity by a local agency, employee, or contractor or subcontractor that may be in violation of any local, state, or federal law, ordinance, or regulation relating to corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse or misappropriation of government property, funds, or resources, or willful omission to perform a duty, is economically wasteful, or involves gross misconduct.
Fourth, the bill authorizes offices on the local level tasked with administering the whistleblower hotlines to identify a designee within the office to manage the hotline. The bill authorizes this designee to refer calls received on the hotline to the appropriate office for review and potential investigation, and requires them to hold in confident information disclosed through the hotline, among various other responsibilities of the hotline administrator. This modification seems a reasonable approach to ensure would-be reports are appropriately fielded and receive sufficient attention.
Finally, the bill makes various amendments to modernize the language found throughout these statutes. The bill includes specifying that a "call" is not limited to a phone call, but instead includes any method of communication a person may choose to submit information to the auditor or controller including a hotline, "that may include in-person notification, telephone call or voicemail, electronic mail, electronic text message, online form submission, facsimile, or other similar means." The language also specifies that "hotline" does not mean only a phone line, but rather "any method of communication" established by the local government.
According to the Author
Assembly Bill 2455, also known as The Whistleblower Protection Enhancement Act, strengthens and modernizes local and state whistleblower hotline laws and adds protections to prevent the misuse of state funds. These changes improve accountability, increase public trust, and ensure government actions and transactions are transparent.
Arguments in Support
This bill is sponsored by the County of Los Angeles, and supported by the California State Association of Counties (CSAC), Rural County Representatives of California (RCRC), and Urban Counties of California (UCC). In support of the bill, CSAC submits the following:
Local government agencies increasingly depend on private contractors to aid in delivering services to their communities. To ensure the Whistleblower Protection Act can fulfill its mission to prevent waste of government resources, it is crucial to safeguard whistleblowers, not only when exposing misconduct within government operations but also in the companies they enlist as contractors.
In 2002, the California legislature passed the Whistleblower Protection Act to protect employees who report unlawful activities. This legislation inspired local governments to implement whistleblower hotlines that provide a location to file reports that disclose fraudulent and wasteful activity, in hopes of saving taxpayers money and making government operations more efficient. AB 2455 modernizes the law by providing clarity in the law to ensure that whistleblowers know their activity is protected not just when reporting improper governmental activities by phone, but also when submitting complaints via online portals or email.
Finally, the bill improves governmental efficiency by allowing the designees of county auditors, controllers, and auditor-controllers to review and investigate whistleblower complaints.
As counties increasingly rely on private contractors, AB 2455 would modernize the current whistleblower laws to help ensure democratic longevity.
Arguments in Opposition
No opposition on file.
FISCAL COMMENTS
According to the Senate Appropriations Committee, likely minor and absorbable costs (General Fund) to the State Auditor to handle additional complaints and submit additional reports to the Legislature. The State Auditor reports that although this bill may lead to some additional complaints submitted to and investigations conducted by the State Auditor, the agency does not expect a significant increase in related workload. However, if complaints increase significantly, the agency may need additional resources in the future to handle the resulting workload.
VOTES:
ASM JUDICIARY: 12-0-0
YES: Kalra, Dixon, Ting, Bryan, Connolly, Haney, Maienschein, McKinnor, Pacheco, Reyes, Sanchez, Waldron
ASM PUBLIC EMPLOYMENT AND RETIREMENT: 7-0-0
YES: McKinnor, Lackey, Boerner, Vince Fong, Hart, Stephanie Nguyen, Luz Rivas
ASM APPROPRIATIONS: 14-0-1
YES: Wicks, Sanchez, Arambula, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Grayson, Haney, Hart, Pellerin, Ta, Villapudua
ABS, ABST OR NV: Jim Patterson
ASSEMBLY FLOOR: 65-0-15
YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Davies, Dixon, Essayli, Mike Fong, Vince Fong, Friedman, Gallagher, Garcia, Gipson, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Blanca Rubio, Sanchez, Santiago, Soria, Ta, Valencia, Villapudua, Waldron, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas
ABS, ABST OR NV: Bains, Cervantes, Megan Dahle, Flora, Gabriel, Grayson, Haney, Low, Mathis, Stephanie Nguyen, Petrie-Norris, Luz Rivas, Schiavo, Ting, Wallis
UPDATED
VERSION: August 15, 2024
CONSULTANT: Manuela Boucher / JUD. / (916) 319-2334 FN: 0004386
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB 2455 |
THIRD READING
Bill No: AB 2455
Author: Gabriel (D), et al.
Amended: 8/15/24 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE: 11-0, 6/11/24
AYES: Umberg, Wilk, Allen, Ashby, Caballero, Durazo, Laird, Niello, Roth, Stern, Wahab
SENATE LOCAL GOVERNMENT COMMITTEE: 7-0, 6/26/24
AYES: Durazo, Seyarto, Dahle, Glazer, Skinner, Wahab, Wiener
ASSEMBLY FLOOR: 65-0, 5/9/24 (Consent) - See last page for vote
SUBJECT: Whistleblower protection: state and local government procedures
SOURCE: County of Los Angeles
DIGEST:
This bill amends the California Whistleblower Protection Act (CWPA) to provide that improper governmental activity includes the misuse of state expenditures, including allocations, loans, or grants. This bill authorizes the California State Auditor (Auditor) or independent investigator to additionally report information from their investigations, if appropriate, to the Assembly Budget Committee and the Senate Budget and Fiscal Review Committee or the Joint Legislative Audit Committee (JLAC). This bill additionally authorizes a city, county, or city and county auditor or controller to identify a designee within the office responsible for the maintenance of that entity’s whistleblower hotline. This bill also revises and recasts existing provisions authorizing those local entities to investigate complaints received regarding fraud, waste, or abuse by a local employee to instead authorize investigation of improper governmental activity, as defined, by a local employee or contractor or subcontractor.
ANALYSIS:
Existing law:
- Establishes the CWPA, which prohibits “improper governmental activities” by state agencies and employees. (Gov. Code § 8547.2.[1])
- Proclaims that 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. (§ 8547.1.)
- Establishes the California State Auditor's Office (CSAO), and states it is the intent of the Legislature that the CSAO has the independence necessary to conduct its audits in conformity with specified federal standards and be free of organizational impairments and from influence of existing state control agencies that could be the subject of audits conducted by the office. (§ 8543 & 8546.)
- Requires the CSAO to accept complaints by mail and via Internet, and to conduct investigations of alleged improper governmental activities, and requires the CSAO to prepare an investigative report and send a copy to the head of the agency involved and the head of the agency that has direct oversight over the agency involved. (§§ 8547.4 & 8547.7.) Authorizes the reports to include the Auditor’s recommended actions to prevent the continuation or recurrence of the activity. (§ 8547.7(a).)
- Authorizes the Auditor, if appropriate, to report the above information to the Attorney General, the policy committees of the Senate and Assembly having jurisdiction over the subject involved, and any other authority that the State Auditor determines is appropriate. (Ibid.)
- Requires the Auditor to create an alternative system for submission to an independent investigator of allegations of improper governmental activity engaged or participated in by employees of the CSAO in a similar manner the Auditor is to conduct investigations under 3), above. (§ 8547.5.)
- Authorizes the independent investigator, if the investigator deems it appropriate, to report the above information to the Attorney General, the policy committees of the Senate and Assembly having jurisdiction over the subject involved, and any other authority that the State Auditor determines is appropriate.
- Provides for the confidentiality of all protected disclosures, including a good faith communication to the CSAO alleging an improper governmental activity and any evidence delivered to the CSAO in support of the allegation. (§ 8547.2(e).)
- Prohibits state employees and officers 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 CWPA. (§ 8547.3(a).)
- Provides that 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 $10,000 and imprisonment in the county jail for a period not to exceed one year. (§ 8547.8(b).)
- Authorizes a city, county, or city and county auditor or controller who is elected to office to maintain a whistleblower hotline to receive calls from persons who have information regarding fraud, waste, or abuse by local government employees. (§ 53087.6.)
- Defines “fraud, waste, or abuse” as any activity by a local agency or employee that is undertaken in the performance of the employee’s official duties, including activities deemed to be outside the scope of their employment, that is in violation of any local, state, or federal law or regulation relating to corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse of government property, or willful omission to perform a duty, is economically wasteful, or involves gross misconduct. (Id. at (f)(2).)
- Authorizes an investigation to be conducted upon receiving specific information that an employee or local government has engaged in an improper government activity. (Id. at (e).)
- Provides for the confidentiality of any calls made to the whistleblower hotline and any investigative audit conducted, except as specified. (Ibid.)
This bill:
- Authorizes the Auditor or independent investigator to additionally report information from their investigation, if deemed appropriate, to the Assembly and Senate Budget committees or the JLAC.
- Expands the definition of improper governmental activity under the CWPA to include the misuse of state expenditures, including allocations, loans, or grants.
- Authorizes a city, county, or city and county auditor or controller to identify a designee within the office responsible for the maintenance of the whistleblower hotline to receive calls from persons who have information regarding improper governmental activity by any agency, employee, or contractor or subcontractor.
- Defines improper governmental activity in a similar manner to “fraud, abuse, or waste” under existing law except that it expands the definition to also include fraud, waste, or abuse and the misuse or misappropriation of government property, funds, or resources.
- Defines “contractor or subcontractor” as a person, firm, corporation, partnership, vendor, or association and its responsible managing officer, as well as any directors, owners, coowners, shareholders, partners, supervisors, managers, employees, and other individuals associated with the contractor or subcontractor who has submitted a bid or proposal; seeks to contract with, contracted with or is in a contractual relationship with; or receives funding including, but not limited to, grants from a city, county, or city and county, or nonprofit, agency, commission, or department created by the city, county, or city and county.
- Clarifies that a local agency “hotline” means any method of communication established by a city, county, or a city and county auditor or controller or the auditor’s or controller’s authorized representatives, as directed by a legislative body, or the governmental agency that is governed by the city, county, or city and county.
- Clarifies that “call” means any method of communication by which a person may submit information to the auditor or controller, including, but not limited to, a whistleblower hotline established under this section, that may include in-person notification, telephone call or voicemail, electronic mail, electronic text message, online form submission, facsimile, or other similar means.
- Provides that 4) and 5), above, are declaratory of existing law and are not to be construed or interpreted as creating new law or as modifying or changing existing law.
Comment
This bill seeks to make several changes to the CWPA and the statute authoring a local government whistleblower hotline in order to modernize the statutes, strengthen and expand the types of activity that can be reported, and make other changes to provide more transparency and protections for the public. Under the bill, the Auditor or independent investigator is authorized to additionally report information from their investigation, if deemed appropriate, to the Assembly and Senate Budget committees or JLAC. Additionally, the bill expands the definition of improper governmental activity under the CWPA to include the misuse of state expenditures, including allocations, loans, or grants.
Existing law authorizes a city, county, or city and county auditor or controller who is elected to office to maintain a whistleblower hotline to receive calls from persons who have information regarding improper governmental activity. The bill authorizes a city, county, or city and county auditor or controller to identify a designee within the office responsible for the maintenance of the whistleblower hotline. This bill revises and recasts these provisions to provide that the hotline may receive calls from persons who have information regarding improper governmental activity as opposed to fraud, abuse, or waste and expands the activity complained about to include contractors or subcontractors, as defined. Under the bill, the definition of improper governmental activity is generally similar to that of “fraud, waste, or abuse” under existing law; however, it additionally includes the misuse or misappropriation of government property, funds, or resources, and includes fraud, waste, or abuse in the definition. The author and sponsor claim that this change is needed because the term “improper governmental activity” is used in the statute as well as “fraud, waste, or abuse.” In 2010, AB 1666 (Swanson, Chapter 80, Statutes of 2010) amended this section to, among other things, specify that the term “improper governmental activity” has the same meaning as “fraud, waste, or abuse” under the statute; however, the amendment was not done in the most clear way.[2] In order to avoid any confusion over the meaning of these two terms under the statute, the author may wish to amend the bill to specify that these two terms have the same definition. The specific amendment is below.
This bill also seeks to clarify that a “call” under the statute includes any method of communication by which a person may submit information to the auditor or controller and that a hotline means any method of communication established by a city, county, or a city and county auditor or controller or the auditor’s or controller’s authorized representatives, as directed by a legislative body or the governmental agency that is governed by the city, county, or city and county. The bill provides that these provisions are declaratory of existing law. Arguably, local governments would have been able to establish a whistleblower hotline even absent the specific statutory authority provided for in Section 53087.6 of the Government Code and; therefore, would have the authority to decide how to receive complaints, i.e. not just by a phone call but also in person or via other electronic means.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No
The Senate Appropriations Committee writes, likely minor and absorbable costs (General Fund) to the State Auditor to handle additional complaints and submit additional reports to the Legislature. The State Auditor reports that although this bill may lead to some additional complaints submitted to and investigations conducted by the State Auditor, the agency does not expect a significant increase in related workload. However, if complaints increase significantly, the agency may need additional resources in the future to handle the resulting workload.
SUPPORT: (Verified 8/15/24)
County of Los Angeles (source)
California State Association of Counties
Little Hoover Commission
Rural County Representatives of California
San Francisco Bay Area Planning and Urban Research Association
State Association of County Auditors
Urban Counties of California
OPPOSITION: (Verified 8/15/24)
None received
ARGUMENTS IN SUPPORT: The author writes:
Assembly Bill 2455, also known as The Whistleblower Protection Enhancement Act, strengthens and modernizes local and state whistleblower hotline laws and adds protections to prevent the misuse of state funds. These changes improve accountability, increase public trust, and ensure government actions and transactions are transparent.
The County of Los Angeles writes in support stating:
AB 2455 provides needed updates to current law to ensure state and local government functions in a proper, efficient, and effective manner.
ASSEMBLY FLOOR: 65-0, 5/9/24
AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Davies, Dixon, Essayli, Mike Fong, Vince Fong, Friedman, Gallagher, Garcia, Gipson, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Blanca Rubio, Sanchez, Santiago, Soria, Ta, Valencia, Villapudua, Waldron, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas
NO VOTE RECORDED: Bains, Cervantes, Megan Dahle, Flora, Gabriel, Grayson, Haney, Low, Mathis, Stephanie Nguyen, Petrie-Norris, Luz Rivas, Schiavo, Ting, Wallis
Prepared by: Amanda Mattson / JUD. / (916) 651-4113
8/18/24 17:50:08
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SENATE COMMITTEE ON
Senator Anna Caballero, Chair
2023 - 2024 Regular Session
AB 2455 (Gabriel) - Whistleblower protection: state and local government procedures
Version: | Policy Vote: |
Urgency: | Mandate: |
Hearing Date: | Consultant: |
Bill Summary:
AB 2455 expands the California Whistleblower Protection Act (CWPA).
*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********
The following information is revised to reflect amendments
adopted by the committee on August 15, 2024
Fiscal Impact:
Likely minor and absorbable costs (General Fund) to the State Auditor to handle additional complaints and submit additional reports to the Legislature. The State Auditor reports that although this bill may lead to some additional complaints submitted to and investigations conducted by the State Auditor, the agency does not expect a significant increase in related workload. However, if complaints increase significantly, the agency may need additional resources in the future to handle the resulting workload.
Committee Amendments:
Delete the provision authorizing the State Personnel Board to accept a complaint within 5 years of the most recent act of reprisal complained about.
-- END --
SENATE COMMITTEE ON APPROPRIATIONS
Senator Anna Caballero, Chair
2023 - 2024 Regular Session
AB 2455 (Gabriel) - Whistleblower protection: state and local government procedures
Version: June 27, 2024 | Policy Vote: JUD. 11 - 0, L. GOV. 7 - 0 |
Urgency: No | Mandate: No |
Hearing Date: August 5, 2024 | Consultant: Liah Burnley |
Bill Summary:
AB 2455 expands the California Whistleblower Protection Act (CWPA).
Fiscal Impact:
- Likely minor and absorbable costs (General Fund) to the State Auditor to handle additional complaints and submit additional reports to the Legislature. The State Auditor reports that although this bill may lead to some additional complaints submitted to and investigations conducted by the State Auditor, the agency does not expect a significant increase in related workload. However, if complaints increase significantly, the agency may need additional resources in the future to handle the resulting workload.
- The State Personnel Board (CalHR) indicates moderate ongoing costs (General Fund) to hire additional personnel, of approximately $250,000 to accept complaints by employees or applicants for state employment.
Background:
The CWPA authorizes the State Auditor to receive and investigate complaints of alleged improper governmental activities and protects a state employee who files such a complaint from suffering any retaliation by their state employer for having made a complaint. The State Auditor is separate and independent from the legislative, executive, and judicial branches of California’s government, and has expansive statutory authority to access and examine information from a government agency for any investigation or audit. According to its website, the State Auditor typically receives more than 4,000 complaints each year. Upon completing an audit or investigation, the State Auditor generally provides recommendations to help improve the government’s operations and use of resources.
Under existing law, an improper governmental activity means an activity undertaken by a state agency (or by a state employee in the course of doing their job) 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
Proposed Law:
This bill would expand the definition of improper governmental activity under the CWPA to include the misuse of state expenditures, including allocations, loans, or grants. It also authorizes the State Auditor or independent investigators to additionally report information from their investigation, if deemed appropriate, to the Assembly and Senate Budget committees or the Joint Legislative Audit Committee (JLAC). It also allows the State Personnel Board to accept complaints by employees or applicants for state employment for up to five years after a reprisal. This bill makes other clarifying and technical changes, and includes findings and declarations to support its purposes.
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SENATE COMMITTEE ON LOCAL GOVERNMENT
Senator María Elena Durazo, Chair
2023 - 2024 Regular
Bill No: | AB 2455 | Hearing Date: | 6/26/24 |
Author: | Gabriel | Fiscal: | Yes |
Version: | 6/13/24 | Consultant: | Favorini-Csorba |
Whistleblower protection: state and local government procedures
Enacts the Whistleblower Protection Enhancement Act, which makes various changes to the California Whistleblower Protection Act and the law regarding local whistleblower hotlines.
Background
The California Whistleblower Protection Act (CWPA) authorizes the State Auditor to receive complaints from state employees and members of the public who want to report improper governmental activity (SB 37, Maddy, 1993). An “improper governmental activity” is any action that violates the law, is economically wasteful, or involves gross misconduct, incompetency, or inefficiency. The complaints the State Auditor receives are confidential, and the State Auditor cannot reveal the identity of the complaintant without the permission of the complainant, except to an appropriate law enforcement agency conducting a criminal investigation. If there is reasonable cause to believe a state employee or agency has engaged in improper governmental activity, the State Auditor must report the nature and details of the activity to the head of the employing agency, or the appropriate appointing authority. The State Auditor must keep investigations confidential, but may issue reports of substantiated investigations, keeping confidential the identity of all individuals involved. The State Auditor must also create an alternative process for an independent investigator to evaluate complaints related to the State Auditor.
Additionally, the Attorney General must maintain a statewide whistleblower hotline to receive calls from the public regarding possible violations of state or federal statutes, rules, regulations, or violations of fiduciary responsibility by a corporation or limited liability company to the shareholders, investors, or employees. The Attorney General must refer calls to the appropriate government authority for further investigation. During the initial review, the identities of the whistleblower and the party being investigated are confidential (SB 777, Escutia, 2003).
Numerous local agencies also have established hotlines and related reporting systems to encourage public reporting of improper activities. An "improper governmental activity" is any action that violates the law, is economically wasteful, or involves gross misconduct, incompetency, or inefficiency. Confidentiality provisions protect the identities of persons reporting improper activities through those hotlines (AB 1666, Swanson, 2010).
Complaints received by the State Auditor, or by local auditors through local “whistleblower hotlines,” are confidential, and a complainant’s identity may not be revealed without the complainant’s permission, except to an appropriate law enforcement agency conducting a criminal investigation.
If there is reasonable cause to believe improper governmental activity has occurred, public audit authorities are required to report their findings to relevant officials, which may include the head of the employing agency, personnel officials, or the appropriate appointing authority. Generally, when reports of substantiated investigations are filed, public audit authorities must keep confidential the identity of individuals involved unless those individuals grant permission for the release of their identities.
Audit authorities have discretion over whether and how to issue reports on their investigations. For substantiated investigations, reports are generally released. Auditors also have the authority to issue reports on other investigations when doing so is in the public’s interest. Whether or not an investigation substantiates an allegation of improper activity, the identities of individuals involved must remain confidential.
The statutes governing local whistleblower hotlines have not been updated since 2010. In that time, communication methods, among other things, have changed. The County of Los Angeles operates a whistleblower hotline and wants to update the CWPA to reflect changes in how it operates.
Proposed Law
Assembly Bill 2455 enacts the Whistleblower Protection Enhancement Act, which makes various changes to CWPA and the law regarding local whistleblower hotlines.
CWPA changes. AB 2455 expands the definition of improper governmental activity under the CWPA to include the misuse of state expenditures, including allocations, loans, or grants. It also authorizes the State Auditor or independent investigators to additionally report information from their investigation, if deemed appropriate, to the Assembly and Senate Budget committees or the Joint Legislative Audit Committee (JLAC). It also allows the State Personnel Board to accept complaints by employees or applicants for state employment for up to five years after a reprisal.
Local hotline changes. AB 2455 allows an auditor or controller of a city or county to identify a designee within the office responsible for the maintenance of the whistleblower hotline to receive calls from people who have information regarding improper governmental activity or fraud, waste, or abuse by any agency, employee, or contractor or subcontractor. The bill defines “improper governmental activity” and “fraud, abuse, or waste” to match the definitions in the CWPA—thereby including activity that is not undertaken in the performance of their official duties—except the bill expands the definition to also include the misuse or misappropriation of government property, funds, or resources.
The bill also clarifies a local agency “hotline” or “call” means any method of communication, which can include in-person notification, telephone call or voicemail, electronic mail, electronic text message, online form submission, facsimile, or other similar means. The bill states these changes are declaratory of existing law and are not to be construed or interpreted as creating new law or as modifying or changing existing law.
AB 2455 makes other clarifying and technical changes, and includes findings and declarations to support its purposes.
Comments
1. Purpose of the bill. According to the author, “Assembly Bill 2455, also known as The Whistleblower Protection Enhancement Act, strengthens and modernizes local and state whistleblower hotline laws and adds protections to prevent the misuse of state funds. These changes improve accountability, increase public trust, and ensure government actions and transactions are transparent.”
2. Let’s get technical. When cleaning up the definitions of “fraud, waste, or abuse” and “improper governmental activity,” AB 2455 inadvertently left out some references to fraud, waste, or abuse in the context of investigations that an auditor may pursue. The Committee may wish to consider amending AB 2455 to add these references.
3. Incoming! The Senate Judiciary Committee approved AB 2455 at its June 11th hearing on a vote of 11-0. The Senate Local Government Committee is hearing AB 2455 as the Committee of second reference.
Assembly Actions
Assembly Judiciary Committee: 12-0
Assembly Public Employment and Retirement Committee: 7-0
Assembly Appropriations Committee: 14-0
Assembly Floor: 65-0
Support and Opposition
(6/21/24)
Support: County of Los Angeles Board of Supervisors (Sponsor)
California State Association of Counties
Rural County Representatives of California (RCRC)
San Francisco Bay Area Planning and Urban Research Association (SPUR)
State Association of County Auditors
Urban Counties of California (UCC)
Opposition: None submitted.
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Senator Thomas Umberg, Chair
2023-2024 Regular Session
Bill No: AB 2455 (Author:Gabriel)
Version: June 3, 2024
Hearing Date: June 11, 2024
Fiscal: Yes
Urgency: No
Consultant: AM
SUBJECT
Whistleblower protection: state and local government procedures
DIGEST
This bill amends the California Whistleblower Protection Act (CWPA) to provide that improper governmental activity includes the misuse of state expenditures, including allocations, loans, or grants. The bill authorizes the California State Auditor (Auditor) or independent investigator to additionally report information from their investigations, if appropriate, to the Assembly and Senate Budget committees or the Joint Legislative Audit Committee. The bill authorizes the State Personnel Board to accept a complaint filed by a state employee of applicant within five years of the most recent act of reprisal alleged against that employee or applicant for making a complaint under the CWPA. The bill additionally authorizes a city, county, or city and county auditor or controller to identify a designee within the office responsible for the maintenance of that entity’s whistleblower hotline. The bill also revises and recasts existing provisions authorizing those local entities to investigate complaints received regarding fraud, waste, or abuse by a local employee to instead authorize investigation of improper governmental activity, as defined, by a local employee or contractor or subcontractor.
EXECUTIVE SUMMARY
The CWPA authorizes the California State Auditor (Auditor) to receive and investigate complaints of alleged improper governmental activities, and also protects every state employee who files a complaint from suffering any retaliation by their state employer for having made the complaint. Additionally, local governments are authorized to maintain a whistleblower hotline to receive calls from persons who have information regarding fraud, waste, or abuse by local government employees. This bill seeks to modernize these provisions with the goal of increasing transparency and accountability. This bill is sponsored by the County of Los Angeles and is supported by various local governments and associations. No timely opposition was received by the Committee. Should this bill pass this Committee, it will next be heard in the Senate Local Government Committee.
PROPOSED CHANGES TO THE LAW
Existing law:
- Establishes the CWPA, which prohibits “improper governmental activities” by state agencies and employees. (Gov. Code § 8547.2.[1])
- Proclaims that 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. (§ 8547.1.)
- Establishes the California State Auditor's Office (CSAO), and states it is the intent of the Legislature that the CSAO has the independence necessary to conduct its audits in conformity with specified federal standards and be free of organizational impairments and from influence of existing state control agencies that could be the subject of audits conducted by the office. (§ 8543 & 8546.)
- Requires the CSAO to accept complaints by mail and via Internet, and to conduct investigations of alleged improper governmental activities, and requires the CSAO to prepare an investigative report and send a copy to the head of the agency involved and the head of the agency that has direct oversight over the agency involved. (§§ 8547.4 & 8547.7.) Authorizes the reports to include the Auditor’s recommended actions to prevent the continuation or recurrence of the activity. (§ 8547.7(a).)
- Authorizes the Auditor, if appropriate, to report the above information to the Attorney General, the policy committees of the Senate and Assembly having jurisdiction over the subject involved, and any other authority that the State Auditor determines is appropriate. (Ibid.)
- Requires the Auditor to create an alternative system for submission to an independent investigator of allegations of improper governmental activity engaged or participated in by employees of the CSAO in a similar manner the Auditor is to conduct investigations under 3, above. (§ 8547.5.)
- Authorizes the independent investigator, if the investigator deems it appropriate, to report the above information to the Attorney General, the policy committees of the Senate and Assembly having jurisdiction over the subject involved, and any other authority that the State Auditor determines is appropriate.
- Provides for the confidentiality of all protected disclosures, including a good faith communication to the CSAO alleging an improper governmental activity and any evidence delivered to the CSAO in support of the allegation. (§ 8547.2(e).)
- Prohibits state employees and officers 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 CWPA. (§ 8547.3(a).)
- Provides that 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 $10,000 and imprisonment in the county jail for a period not to exceed one year. (§ 8547.8(b).)
- Authorizes a state employee or applicant for state employment who files a written complaint with their supervisor, manager, or the appointing power alleging actual or attempted acts of reprisal, retaliation, threats, coercion, or similar improper acts to also file a copy of the written complaint with the State Personnel Board (SPB), together with a sworn statement that the contents of the written complaint are true. (§ 8547.8.)
- Requires a complaint filed with SPB to be filed within 12 months of the most recent act of reprisal complained about. (Id. at (a).)
- Defines various terms for purposes of the CWPA, including:
- “Employee” means an individual appointed by the governor or employed or holding office in a state agency. (§ 8547.2(a).)
- “Protected disclosure” means a good faith communication that discloses or demonstrates an intention to disclose information that may show either (1) an improper governmental activity, or (2) a condition that may threaten the health or safety of employees or the public, if the purpose of disclosing is to remedy that condition. (§ 8547.2(e).)
- “Improper governmental activity” means an activity by a state agency or by an employee that is undertaken in the performance of their duties, undertaken inside a state office, or, if undertaken outside a state office by the employee, directly relates to state government, whether or not that activity is within the scope of employment, and also meets at least one of the following criteria:
- it 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 a duty;
- it 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
- it is economically wasteful, involves gross misconduct, incompetency, or inefficiency. (§ 8547.2(c).)
- Authorizes a city, county, or city and county auditor or controller who is elected to office to maintain a whistleblower hotline to receive calls from persons who have information regarding fraud, waste, or abuse by local government employees. (§ 53087.6.)
- Defines “fraud, waste, or abuse” as any activity by a local agency or employee that is undertaken in the performance of the employee’s official duties, including activities deemed to be outside the scope of their employment, that is in violation of any local, state, or federal law or regulation relating to corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse of government property, or willful omission to perform a duty, is economically wasteful, or involves gross misconduct. (Id. at (f)(2).)
- Authorizes an investigation to be conducted upon receiving specific information that an employee or local government has engaged in an improper government activity. (Id. at (e).)
- Provides for the confidentiality of any calls made to the whistleblower hotline and any investigative audit conducted, except as specified. (Ibid.)
This bill:
- Authorizes the Auditor or independent investigator to additionally report information from their investigation, if deemed appropriate, to the Assembly and Senate Budget committees or the Joint Legislative Audit Committee (JLAC).
- Expands the definition of improper governmental activity under the CWPA to include the misuse of state expenditures, including allocations, loans, or grants.
- Authorizes a city, county, or city and county auditor or controller to identify a designee within the office responsible for the maintenance of the whistleblower hotline to receive calls from persons who have information regarding improper governmental activity by any agency, employee, or contractor or subcontractor.
- Defines improper governmental activity in a similar manner to “fraud, abuse, or waste” under existing law except that it expands the definition to also include fraud, waste, or abuse and the misuse or misappropriation of government property, funds, or resources.
- Defines “contractor or subcontractor” as a person, firm, corporation, partnership, vendor, or association and its responsible managing officer, as well as any directors, owners, coowners, shareholders, partners, supervisors, managers, employees, and other individuals associated with the contractor or subcontractor who has submitted a bid or proposal; seeks to contract with, contracted with or is in a contractual relationship with; or receives funding including, but not limited to, grants from a city, county, or city and county, or nonprofit, agency, commission, or department created by the city, county, or city and county.
- Clarifies that a local agency “hotline” means any method of communication established by a city, county, or a city and county auditor or controller or the auditor’s or controller’s authorized representatives, as directed by a legislative body, or the governmental agency that is governed by the city, county, or city and county.
- Clarifies that “call” means any method of communication by which a person may submit information to the auditor or controller, including, but not limited to, a whistleblower hotline established under this section, that may include in-person notification, telephone call or voicemail, electronic mail, electronic text message, online form submission, facsimile, or other similar means.
- Provides that 4) and 5), above, are declaratory of existing law and are not to be construed or interpreted as creating new law or as modifying or changing existing law.
COMMENTS
- Stated need for the bill
The author writes:
Assembly Bill 2455, also known as The Whistleblower Protection Enhancement Act, strengthens and modernizes local and state whistleblower hotline laws and adds protections to prevent the misuse of state funds. These changes improve accountability, increase public trust, and ensure government actions and transactions are transparent.
- This bill seeks to modernize the CWPA
- Changes to the CWPA
This bill seeks to make several changes to the CWPA and the statute authoring a local government whistleblower hotline in order to modernize the statutes, strengthen and expand the types of activity that can be reported, and make other changes to provide more transparency and protections for the public. Under the bill, the Auditor or independent investigator is authorized to additionally report information from their investigation, if deemed appropriate, to the Assembly and Senate Budget committees or JLAC. Additionally, the bill expands the definition of improper governmental activity under the CWPA to include the misuse of state expenditures, including allocations, loans, or grants.
Under existing law a state employee or applicant for state employment who files a written complaint with their supervisor, manager, or the appointing power alleging actual or attempted acts of reprisal, retaliation, threats, coercion, or similar improper acts for making a complaint under the CWPA to also file a copy of the written complaint with the State Personnel Board (SPB), together with a sworn statement that the contents of the written complaint are true. A state employee or applicant is required to file their complaint within 12 months of the most recent act of reprisal being complained about by that employee or applicant. This bill would allow SPB to accept complaints within five years of the most recent act of reprisal complained about. The author may wish to amend the bill to make it clear that the five years authorization is notwithstanding the existing 12 month requirement for an employee or applicant to file a complaint with SPB.
- Changes to the local agency whistleblower hotline
Existing law authorizes a city, county, or city and county auditor or controller who is elected to office to maintain a whistleblower hotline to receive calls from persons who have information regarding improper governmental activity. The bill authorizes a city, county, or city and county auditor or controller to identify a designee within the office responsible for the maintenance of the whistleblower hotline. The bill revises and recasts these provisions to provide that the hotline may receive calls from persons who have information regarding improper governmental activity as opposed to fraud, abuse, or waste and expands the activity complained about to include contractors or subcontractors, as defined. Under the bill, the definition of improper governmental activity is generally similar to that of “fraud, waste, or abuse” under existing law; however, it additionally includes the misuse or misappropriation of government property, funds, or resources, and includes fraud, waste, or abuse in the definition. The author and sponsor claim that this change is needed because the term “improper governmental activity” is used in the statute as well as “fraud, waste, or abuse.” In 2010, AB 1666 (Swanson, Ch. 80, States. 2010) amended this section to, among other things, specify that the term “improper governmental activity” has the same meaning as “fraud, waste, or abuse” under the statute; however, the amendment was not done in the most clear way.[2] In order to avoid any confusion over the meaning of these two terms under the statute, the author may wish to amend the bill to specify that these two terms have the same definition. The specific amendment is below.
The bill also seeks to clarify that a “call” under the statute includes any method of communication by which a person may submit information to the auditor or controller and that a hotline means any method of communication established by a city, county, or a city and county auditor or controller or the auditor’s or controller’s authorized representatives, as directed by a legislative body or the governmental agency that is governed by the city, county, or city and county. The bill provides that these provisions are declaratory of existing law. Arguably, local governments would have been able to establish a whistleblower hotline even absent the specific statutory authority provided for in Section 53087.6 of the Government Code and; therefore, would have the authority to decide how to receive complaints, i.e. not just by a phone call but also in person or via other electronic means.
- Proposed amendment
In order to provide clarity within the definition of the terms “fraud, waste, or abuse” and “improper governmental activity” under Section 53087.6 of the Government Code, and to make it clear that SPB can accept complaints within five years, as opposed to the existing 12 month limitation to file a complaint, the author may wish to make the following amendments to the bill: [3]
Amendment 1
Section 8547.8 of the Government Code is amended to read:
8547.8. (a) A state employee or applicant for state employment who files a written complaint with their 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.
(1) The state employee or applicant for state employment shall file their complaint with the board within 12 months of the most recent act of reprisal complained about.
(2) The Notwithstanding paragraph (1), the board may accept the complaint filed by the state employee or applicant for state employment within five years 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 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 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.
Amendment 2
Section 53087.6 of the Government Code is amended to read:
53087.6. (a) (1) A city, county, or city and county auditor or controller who is elected to office may maintain a whistleblower hotline to receive calls from persons who have information regarding fraud, waste, or abuse or improper governmental activity.
(2) A city, county, or city and county auditor or controller who is appointed by, or is an employee of, a legislative body or the governmental agency that is governed by the city, county, or city and county, shall obtain approval of that legislative body or the governmental agency, as the case may be, prior to establishing the whistleblower hotline.
(3) A city, county, or city and county auditor or controller may identify a designee within the office responsible for the maintenance of the whistleblower hotline pursuant to this section.
(b) The auditor or controller, or the auditor’s or controller’s designee, may refer calls received on the whistleblower hotline to the appropriate government authority for review and possible investigation.
(c) During the initial review of a call received pursuant to subdivision (a), the auditor or controller, or the auditor’s or controller’s designee, or other appropriate governmental agency, shall hold in confidence information disclosed through the whistleblower hotline, including the identity of the caller disclosing the information and the parties identified by the caller.
(d) A call made to the whistleblower hotline pursuant to subdivision (a), or its referral to an appropriate agency under subdivision (b), may not be the sole basis for a time period under a statute of limitation to commence. This section does not change existing law relating to statutes of limitation.
(e) (1) Upon receiving specific information regarding improper governmental activity, as defined by paragraph (5) of subdivision (f), activity a city or county auditor or controller, or auditor’s or controller’s designee, 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 that person, unless the disclosure is to a law enforcement agency that is conducting a criminal investigation. If the specific information is in regard to improper government activity that occurred under the jurisdiction of another city, county, or city and county, the information shall be forwarded to the appropriate auditor or controller for that city, county, or city and county.
(2) Any investigative audit conducted pursuant to this subdivision shall be kept confidential, except to issue any report of an investigation that has been substantiated, or to release any findings resulting from a completed investigation that are deemed necessary to serve the interests of the public. In any event, the identity of the individual or individuals reporting the improper government activity and the subject employee or employees shall be kept confidential.
(3) Notwithstanding paragraph (2), the auditor or controller may provide a copy of a substantiated audit report that includes the identities of the subject employee or employees and other pertinent information concerning the investigation to the appropriate appointing authority for disciplinary purposes. The substantiated audit report, any subsequent investigatory materials or information, and the disposition of any resulting disciplinary proceedings are subject to the confidentiality provisions of applicable local, state, and federal statutes, rules, and regulations.
(f) For purposes of this section, the following definitions apply:
(1) “Call” means any method of communication by which a person may submit information to the auditor or controller, including, but not limited to, a whistleblower hotline established under this section, that may include in-person notification, telephone call or voicemail, electronic mail, electronic text message, online form submission, facsimile, or other similar means. This paragraph is declaratory of existing law and shall not be construed or interpreted as creating new law or as modifying or changing existing law.
(2) “Contractor or subcontractor” means a person, firm, corporation, partnership, vendor, or association and its responsible managing officer, as well as any directors, owners, coowners, shareholders, partners, supervisors, managers, employees, and other individuals associated with the contractor or subcontractor who has submitted a bid or proposal; seeks to contract with, contracted with or is in a contractual relationship with; or receives funding including, but not limited to, grants from a city, county, or city and county, or nonprofit, agency, commission, or department created by the city, county, or city and county.
(3) “Employee” means any individual employed by any county, city, or city and county, including any charter city or county, and any school district, community college district, municipal or public corporation, or political subdivision that falls under the auditor’s or controller’s jurisdiction.
(4) “Hotline” means any method of communication established by a city, county, or a city and county auditor or controller or the auditor’s or controller’s authorized representatives, as directed by a legislative body or the governmental agency that is governed by the city, county, or city and county. This paragraph is declaratory of existing law and shall not be construed or interpreted as creating new law or as modifying or changing existing law.
(5) “Improper “Fraud waste, or abuse” or “improper governmental activity” means any activity by a local agency, employee, or contractor or subcontractor that may be in violation of any local, state, or federal law, ordinance, or regulation relating to fraud, waste, abuse, corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse or misappropriation of government property, funds, or resources, or willful omission to perform a duty, is economically wasteful, or involves gross misconduct.
- Statements in support
SPUR writes in support stating:
AB 2455 is a “good government” measure which modernizes state and local whistleblower hotline laws and adds protections to prevent the misuse of state funds. These changes will strengthen accountability, increase public trust and ensure government actions and transactions are open and transparent.
In 2002, the Legislature passed the Whistleblower Protection Act to protect employees that report unlawful activities. This law inspired local governments to adopt their own whistleblower hotlines. These hotlines provide a location to file reports that disclose fraudulent and wasteful activity, save taxpayer money and make our government more efficient.
Recent incidents in state and local government underline the need to strengthen and improve California’s landmark accountability laws and modernize the whistleblower protections to maintain public trust and confidence in government.
SUPPORT
County of Los Angeles (sponsor)
California State Association of Counties
Rural County Representatives of California
San Francisco Bay Area Planning and Urban Research Association (SPUR)
State Association of County Auditors
OPPOSITION
None received
RELATED LEGISLATION
Pending Legislation: AB 2299 (Flora, 2024) requires the Labor Commissioner to develop a model list of employees’ rights and responsibilities under specified whistleblower laws, and specifies that an employer that posts the model list is deemed in compliance with the posting requirement. AB 2299 is currently pending in the Senate Committee on Labor, Public Employment and Retirement.
Prior Legislation:
AB 1666 (Swanson, Ch. 80, States. 2010) specified that a city, county, or city and county auditor or controller may maintain the whistleblower hotline to receive calls from persons who have information regarding fraud, waste, or abuse, and defined those terms.
AB 2001 (Swanson, Ch. 325, Stats 2008) authorized a city, county, or city and county auditor or controller to maintain a whistleblower hotline to receive calls from persons who have information regarding possible violations by local government employees of state, federal, or local statutes, rules, or regulations, and required any investigation conducted to be kept confidential except as specified.
PRIOR VOTES
Assembly Floor (Ayes 65, Noes 0)
Assembly Appropriations Committee (Ayes 14, Noes 0)
Assembly Public Employment and Retirement Committee (Ayes 7, Noes 0)
Assembly Judiciary Committee (Ayes 12, Noes 0)
**************
All further statutory references are to the Government Code, unless otherwise indicated. ↑
Sen. Local Gov. Comm. analysis of AB 1666 (10029-10 reg. sess.) as amended June 9, 2010 at p. 2. ↑
The amendments may also include technical, nonsubstantive changes recommended by the Office of Legislative Counsel. ↑
Date of Hearing: May 1, 2024
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Buffy Wicks, Chair
ABPCA Bill Id:AB 2455
Author:(Gabriel) – As Amended Ver:April 4, 2024
Policy Committee: | Judiciary | Vote: | 12 - 0 |
Public Employment and Retirement | 7 - 0 | ||
|
|
Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill expands the definition of “improper governmental activity” in the California Whistleblower Protection Act (CWPA) and makes other changes to the CWPA.
Specifically, among other provisions, this bill:
- Expands the definition of “improper governmental activity” to include misuse of state expenditures, including allocations, loans, or grants.
- Requires an independent investigator and the State Auditor, if appropriate, to provide a confidential report about substantiated allegations of improper governmental activity to the Assembly and Senate Budget Committees and the Joint Legislative Audit Committee.
- Authorizes the State Personnel Board to accept a complaint filed by a state employee within five years of the most recent act of reprisal included in the complaint.
- Authorizes the auditor or controller of a city, county, or city and county is who elected to office to maintain a whistleblower hotline to receive calls from persons who have information regarding improper governmental activity.
- Authorizes the auditor or controller of a city, county, or city and county to identify a designee within the office responsible for maintenance of the whistleblower hotline.
FISCAL EFFECT:
Likely minor and absorbable costs (General Fund) to the State Auditor to handle additional complaints and submit additional reports to the Legislature. The State Auditor reports that although this bill may lead to some additional complaints submitted to and investigations conducted by the State Auditor, the agency does not expect a significant increase in related workload. However, if complaints increase significantly, the agency may need additional resources in the future to handle the resulting workload.
COMMENTS:
- Purpose. According to the author:
Assembly Bill 2455, also known as The Whistleblower Protection Enhancement Act, strengthens and modernizes local and state whistleblower hotline laws and adds protections to prevent the misuse of state funds. These changes improve accountability, increase public trust, and ensure government actions and transactions are transparent.
- Background. The CWPA authorizes the State Auditor to receive and investigate complaints of alleged improper governmental activities and protects a state employee who files such a complaint from suffering any retaliation by their state employer for having made a complaint. The State Auditor is separate and independent from the legislative, executive, and judicial branches of California’s government, and has expansive statutory authority to access and examine information from a government agency for any investigation or audit. According to its website, the State Auditor typically receives more than 4,000 complaints each year. Upon completing an audit or investigation, the State Auditor generally provides recommendations to help improve the government’s operations and use of resources.
Under existing law, an improper governmental activity means an activity undertaken by a state agency (or by a state employee in the course of doing their job) in violation of any state or federal law or regulation, including, but not limited to, the following activities:
corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse of government property, or willful omission to perform duty.
This bill expands this definition to include “misuse of state expenditures, including allocations, loans, or grants.” By expanding this definition, the bill may result in people submitting more complaints alleging misuse of state expenditures to the State Auditor, increasing the agency’s workload to respond to and investigate those complaints. However, the agency reports that it views this change in definition as a clarification that is unlikely to significantly increase the number of complaints submitted. The type of activities involved in misuse of state expenditures complaints are likely already implicated by the existing definition of improper government activity, which includes corruption and misuse of government property.
Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081
Date of Hearing: April 17, 2024
ASSEMBLY COMMITTEE ON PUBLIC EMPLOYMENT AND RETIREMENT
Tina S. McKinnor, Chair
ABPCA Bill Id:AB 2455 (
Author:Gabriel) – As Amended Ver:April 4, 2024
SUBJECT: Whistleblower protection: state and local government procedures
SUMMARY: Expands and modernizes the State’s whistleblower protection laws, and identifies the following provisions as the Whistleblower Enhancement Act. Specifically, this bill:
- Requires an independent investigator, upon determination that it is appropriate, to provide a confidential report detailing the facts supporting a conclusion that an employee engaged or participated in improper governmental activities, to the Assembly and Senate Budget Committees and the Joint Legislative Audit Committee.
- Requires the State Auditor, upon determination that it is appropriate, to provide an investigative report regarding a finding that a state agency or employee may have engaged or participated in an improper governmental activity to the Assembly and Senate Budget Committees and Joint Legislative Audit Committee.
- Authorizes the State Personnel Board to accept a complaint filed by a state employee alleging actual or attempted acts of reprisal, retaliation, threats, coercion, or similar prohibited improper acts within five years of the most recent act of reprisal complained about.
- Authorizes a city, county, or city and county auditor or controller who is elected to office to maintain a whistleblower hotline to receive calls from persons who have information regarding improper governmental activity.
- Authorizes a city, county, or city and county auditor or controller to identify a designee within the office responsible for maintenance of the whistleblower hotline, and makes conforming changes to the responsibilities of the auditor or controller who identifies a designee.
- Defines, for these purposes, the following terms that are respectively applicable to these provisions:
- “Call” to mean any method of communication by which a person may submit information to the auditor or controller, including, but not limited to, a whistleblower hotline, that may include in-person notification, telephone call or voicemail, electronic mail, electronic text message, online form submission, facsimile, or other similar means, and establishes that this definition is declaratory of existing law and must not be construed or interpreted as creating new law or as modifying or changing existing law.
- “Contractor or subcontractor” to mean a person, firm, corporation, partnership, vendor, or association and its responsible managing officer, as well as any directors, owners, co-owners, shareholders, partners, supervisors, managers, employees, and other individuals associated with the contractor or subcontractor who has submitted a bid or proposal; seeks to contract with, contracted with or is in a contractual relationship with; or receives funding including, but not limited to, grants from a city, county, or city and county, or nonprofit, agency, commission, or department created by the city, county, or city and county, or nonprofit, agency, commission, or department created by the city, county, or city and county.
- “Employee” as a: (a) person employed by the Supreme Court, court of appeal, superior court, or the Administrative Office of the Courts, for purposes as provided and excepted, or (b) a former employee who met the prescribed criteria during their employment.
- “Hotline” to mean any method of communication established by a city, county, or a city and county auditor or controller or the auditor’s or controller’s authorized representatives, as directed by a legislative body or the governmental agency that is governed by the city, county, or city and county, and establishes that this definition is declaratory of existing law and must not be construed or interpreted as creating new law or as modifying or changing existing law.
- Replaces “fraud, waste, or abuse” with “improper governmental activity” to mean any activity by a local agency, employee, or contractor and subcontractor that may be in violation of any local, state, or federal law, ordinance, or regulation relating to fraud, waste, abuse, corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse or misappropriation of government property, funds, or resources, or willful omission to perform a duty, is economically wasteful, or involves gross misconduct; and, expands the existing definition of “improper governmental activity” to include misuse of state expenditures, including allocations, loans, or grants.
- States a legislative finding and declaration relating to the imposition of a public’s right of access to the meetings of public bodies or writings of public officials and agencies, as provided, and to protect whistleblowers, the state Auditor or Controller, and their designees from undue exposure or retaliation while also protecting the actual and perceived integrity of investigations and preventing malfeasance, it is necessary to preserve the confidentiality of this information.
- Makes technical and conforming changes for these purposes.
EXISTING LAW:
- Pursuant to the California Whistleblower Protection Act (CWPA), prohibits “improper governmental activities” by state agencies and employees.[1]
- 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.[2]
- Includes the following relevant definitions in the CWPA:[3]
- “Employee” means an individual appointed by the governor, or employed or holding office in a state agency.
- “Protected disclosure” means a good faith communication that discloses or demonstrates an intention to disclose information that may show either (1) an improper governmental activity, or (2) a condition that may threaten the health or safety of employees or the public, if the purpose of disclosing is to remedy that condition.
- “Improper governmental activity” means an activity by a state agency or by an employee that is undertaken in performance duties, undertaken inside a state office, or, if undertaken outside a state office by the employee, directly relates to state government, whether or not that activity is within the scope of his or her employment, and also meets at least one of the following criteria:
- It 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 a duty.
- It 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.
- It is economically wasteful, involves gross misconduct, incompetency, or inefficiency.
- Requires the State Auditor's Office (SAO) to be free of organizational impairments to independence, to be independent of the executive branch and legislative control and to remain free from the influence of existing control agencies that could be the subject of audits conducted by the office.[4]
- Ensures the confidentiality of all protected disclosures, including a good faith communication to the SAO alleging an improper governmental activity and any evidence delivered to the SAO in support of the allegation.[5]
- Prohibits state employees and officers 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 CWPA.[6]
- Requires the SAO to accept complaints by mail and via Internet, and to conduct investigations of alleged improper governmental activities, and authorizes the SAO to issue reports of its findings including recommended corrective actions if it finds reasonable cause to believe an improper governmental activity has occurred.[7]
- Allows a state employee or applicant for state employment (including an employee of the SAO or applicant for employment at the SAO) who files a written complaint with their 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 to also file a copy of the written complaint with the State Personnel Board (SPB), together with a sworn statement that the contents of the written complaint are true.[8]
- Authorizes a city, county, or city and county auditor or controller who is elected to office to maintain a whistleblower hotline to receive calls from persons who have information regarding fraud, waste, or abuse by local government employees.[9]
FISCAL EFFECT: Unknown. This bill is flagged as fiscal by Legislative Counsel.
COMMENTS:
- Dual Referral
The committee is informed that, on April 9, 2024, the Assembly Committee on Judiciary heard and unanimously passed this bill (consent: 12-0), and re-referred it to this committee.
- Background: Need for the Bill
Information provided by the author states in part that, “[current] whistleblower hotline laws are outdated and fail to reflect County or State modernization efforts. For instance, county-level whistleblower hotline laws currently only recognize “calls” as a proper whistleblower reporting method, even though email, online forms, and letters are also often used by whistleblowers. Furthermore, in investigations against the auditor’s office, not all relevant personnel are notified when waste, fraud, and abuse are found.
“Whistleblower hotlines are tools that help uphold transparency and accountability in our democracy and are used extensively in California. In response to whistleblower complaints, the California State Auditor’s Office found $280,000 of inappropriate expenditure in 2022 and $400,000 worth of improper governmental activity in 2021.[10] Improper governmental activity is also found in local governments,”[11] and “…California county-level whistleblower hotlines have not been updated since 2010.”
- Increasing Public Transparency, Scrutiny, and Accountability
The analysis of this bill by the Assembly Committee on Judiciary notes the following, and committee staff here concurs with that assessment:
“First, the CWPA currently defines “improper governmental activities” as an activity by a state agency or an employee done as part of the employee’s duties, inside a state office, or, if undertaken outside a state office by the employee, relates to state government, whether or not it is within the scope of their employment and is a 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 a duty.[12] Put more succinctly, an “improper governmental activity” refers to an action by an agency or employee that violates a state or federal law such as corruption, bribery, or misuse of government property. [This bill] expands the definition of “improper governmental activity” to include the misuse of state expenditures, including allocations, loans, or grants. This change to existing law seems a logical approach to ensuring that any misuse of state dollars, whether the improper use was carried out by a government agency or a grant recipient, is subject to the CWPA.
“Second, existing law authorizes the SAO to conduct an independent investigation of alleged improper governmental activity. Existing law also authorizes an alternative system for submission to an independent investigator of allegations of improper governmental activity engaged or participated in by employees of the SAO. In both circumstances, existing law authorizes the SAO or independent investigator to report the results of their investigation to the Attorney General and policy committees of the Senate and Assembly with jurisdiction over the subject.[13] To increase legislative oversight over findings regarding improper governmental activity, this bill would authorize the SAO or independent investigator to report their findings to the Assembly and Senate Budget Committees and the Joint Legislative Audit Committee, if they determine it to be appropriate.
“Third, the CWPA currently authorizes a state employee or applicant to file a written complaint alleging acts or attempted acts of retaliation for protected whistleblower activities to also file a complaint with the SPB. Existing law requires the complaint to be filed within 12 months of the most recent act of reprisal complained about.[14] Acknowledging that acts of retaliation may continue past the initial incident, [this bill] would grant the SPB discretion to accept such complaints within five years of the most recent act of reprisal complained about. Importantly, the language of the bill grants the SPB discretion, and does not mandate that they accept any complaint filed after the existing 12-month timeline.
“Fourth, existing law authorizes local governments to maintain a whistleblower hotline to receive calls from individuals who have information regarding “fraud, waste, or abuse by local government employees” and establishes procedures for administering the hotline and responding to reports of misconduct.[15] This bill proposes two changes to these provisions: (a) [it] strikes reference to “fraud, waste, or abuse by local government employees,” and replaces the phrase with a more succinct reference to “improper governmental activity,” and (b) [it] expands the scope of “improper governmental activity” (previously “fraud, waste, or abuse,”) to include any of the prohibited behaviors committed by a contractor or subcontractor. As with the amendment to the CWPA, this modification [would] identify whether any government dollars were spent for improper purposes.
“Fifth, [this] bill authorizes offices on the local level tasked with administering the whistleblower hotlines to identify a designee within the office to manage the hotline [; …] authorizes this designee to refer calls received on the hotline to the appropriate office for review and potential investigation [; and,] requires them to hold in confident information disclosed through the hotline, among various other responsibilities of the hotline administrator. This modification [may be] a reasonable approach to ensure would-be reports are appropriately fielded and receive sufficient attention.
“Finally, the bill makes various amendments to modernize the language found throughout these statutes [, and] includes specifying that a “call” is not limited to a phone call, but instead includes any method of communication a person may choose to submit information to the auditor or controller including a hotline, “that may include in-person notification, telephone call or voicemail, electronic mail, electronic text message, online form submission, facsimile, or other similar means.” [Further, its provisions] also [specify] that “hotline” does not mean only a phone line, but rather “any method of communication” established by the local government.”
- Statement by the Author
The author states that, “[this bill], also known as The Whistleblower Protection Enhancement Act, strengthens and modernizes local and state whistleblower hotline laws and adds protections to prevent the misuse of state funds. These changes improve accountability, increase public trust, and ensure government actions and transactions are transparent.”
- Comments by Supporters
Generally, among other things, supporters of this bill state that this bill provides a needed update to existing law to ensure that California governments are properly, efficiently, and effectively functioning.
- Comments by Opponents
None on file.
- Prior or Related Legislation
Chapter 328, Statutes of 2011 (Assembly Bill 1102, Lara) clarified the authority of the SAO to conduct audits of the judiciary, and includes the Bureau of State Audits costs under a continuous appropriation, among other provisions.
Chapter 605, Statutes of 2017 (Assembly Bill 31, Rodriguez) amended the CWPA by providing a mechanism for SAO employees to report the improper or illegal conduct of their employer to an external investigator in a confidential manner.
Chapter 673, Statutes of 1999 (Senate Bill 951, Hayden) renamed the statute at that time providing protections to state employees who report improper governmental activities; enhanced those statutory protections; aligned the statutes with federal whistleblower laws; and, made related legislative findings and declarations.
REGISTERED SUPPORT / OPPOSITION:
Support
Los Angeles County Board of Supervisors (Sponsor)
California State Association of Counties
Consumer Watchdog
Urban Counties of California
Opposition
None on file.
Analysis Prepared by: Michael Bolden / P. E. & R. / (916) 319-3957
Section 8547.2 of the Government (Gov.) Code. ↑
Section 8547.1 of the Gov. Code. ↑
Sections 8547.2, inclusive, of the Gov. Code. ↑
Sections 8543 and 8546 of the Gov. Code. ↑
Section 8547.2 (e) of the Gov. Code. ↑
Section 8547.3 (a) of the Gov. Code. ↑
Sections 8547.4, 8547.5, and 8547.7 of the Gov. Code. ↑
Section 8547.8 (a) of the Gov. Code. ↑
Section 53087.6 (a) of the Gov. Code. ↑
“Investigations of Improper Activities by State Agencies and Employees – Wasteful Decisions, Poor Contract Oversight, Overpayments, Misuse of State Resources, and Attendance Abuse.” California State Auditor, May 1, 2023, and “Investigations of Improper Activities by State Agencies and Employees – Inexcusable Neglect of Duty, Inefficiency, Improper Payments, Misuse of State Resources, Attendance Abuse, and Improper Hiring.” California State Auditor, May 26, 2022. ↑
“Safeguarding Against Fraud, Waste, and Abuse: Whistleblower Protections and Tips Hotlines in Special-Purpose and Local Governments.” Deborah Pattison, A Capstone Project Submitted to the Faculty of Utica College, December 2017. ↑
Ref. fn. 3. ↑
Section 8547.5 (c) (1) – (2) of the Gov. Code. ↑
Section 8547.8 (a) of the Gov. Code. ↑
Sections 53087.6 et seq. of the Gov. Code. ↑
Date of Hearing: April 9, 2024
ASSEMBLY COMMITTEE ON JUDICIARY
Ash Kalra, Chair
ABPCA Bill Id:AB 2455
Author:(Gabriel) – As Amended Ver:April 4, 2024
PROPOSED CONSENT
SUBJECT: Whistleblower protection: state and local government procedures
KEY ISSUE: SHOULD CALIFORNIA’S WHISTLEBLOWER LAWS, including the california whistleblower protection act, BE modernized to enhance their efficacy?
SYNOPSIS
This bill seeks to modernize the California Whistleblower Protection Act (CWPA) and whistleblower hotline laws in order to enhance their efficacy. According to the author, the bill’s proposed changes improve accountability, increase public trust, and ensure government actions and transactions are transparent.
This bill makes numerous changes to existing law, including expanding both the CWPA and whistleblower hotline laws to capture misconduct involving state grant funds, contractors and subcontractors, and allowing local governments to authorize additional individuals to administer the whistleblower hotlines. This bill is sponsored by the County of Los Angeles, and is supported by a number of local government organizations. Should this bill be approved by this Committee it will be referred to the Assembly Committee on Public Employment and Retirement.
SUMMARY: Expands and modernizes California’s whistleblower protection laws. Specifically, this bill:
- Identifies the provisions of this bill as the Whistleblower Protection Enhancement Act.
- Expands the definition of “improper governmental activity” to include misuse of state expenditures, including allocations, loans, or grants.
- Requires an independent investigator, upon determination that it is appropriate, to provide a confidential report detailing the facts supporting a conclusion that an employee engaged or participated in improper governmental activities, to the Assembly and Senate Budget Committees and the Joint Legislative Audit Committee.
- Requires the State Auditor, upon determination that it is appropriate, to provide an investigative report regarding a finding that a state agency or employee may have engaged or participated in an improper governmental activity to the Assembly and Senate Budget Committees and Joint Legislative Audit Committee.
- Authorizes the State Personnel Board to accept a complaint filed by a state employee alleging actual or attempted acts of reprisal, retaliation, threats, coercion, or similar prohibited improper acts within five years of the most recent act of reprisal complained about.
- Authorizes a city, county, or city and county auditor or controller who is elected to office to maintain a whistleblower hotline to receive calls from persons who have information regarding improper governmental activity.
- Authorizes a city, county, or city and county auditor or controller to identify a designee within the office responsible for maintenance of the whistleblower hotline.
- Makes conforming changes to the responsibilities of the auditor or controller who identifies a designee.
- Defines, for the purposes of 6) – 7) the following terms:
- “Call” means any method of communication by which a person may submit information to the auditor or controller, including, but not limited to, a whistleblower hotline, that may include in-person notification, telephone call or voicemail, electronic mail, electronic text message, online form submission, facsimile, or other similar means.
- Clarifies that this definition is declaratory of existing law and shall not be construed or interpreted as creating new law or as modifying or changing existing law.
- “Contractor or subcontractor” means a person, firm, corporation, partnership, vendor, or association and its responsible managing officer, as well as any directors, owners, co-owners, shareholders, partners, supervisors, managers, employees, and other individuals associated with the contractor or subcontractor who has submitted a bid or proposal; seeks to contract with, contracted with or is in a contractual relationship with; or receives funding including but not limited to, grants from a city, county, or city and county, or nonprofit, agency, commission, or department created by the city, county, or city and county.
- “Hotline” means any method of communication established by a city, county, or a city and county auditor or controller or the auditor’s or controller’s authorized representatives, as directed by a legislative body or the governmental agency that is governed by the city, county, or city and county. Specifies that this definition is declaratory of existing law and shall not be construed or interpreted as creating new law or as modifying or changing existing law.
- Redefines “fraud, waste, or abuse” as “improper governmental activity” meaning any activity by a local agency, employee, or contractor and subcontractor that may be in violation of any local, state, or federal law, ordinance, or regulation relating to fraud, waste, abuse, corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse or misappropriation of government property, funds, or resources, or willful omission to perform a duty, is economically wasteful, or involves gross misconduct.
- “Call” means any method of communication by which a person may submit information to the auditor or controller, including, but not limited to, a whistleblower hotline, that may include in-person notification, telephone call or voicemail, electronic mail, electronic text message, online form submission, facsimile, or other similar means.
EXISTING LAW:
- Pursuant to the CWPA, prohibits “improper governmental activities” by state agencies and employees. (Government Code Section 8547.2. All further statutory references are to the Government Code, unless otherwise indicated.)
- 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. (Section 8547.1.)
- Includes the following relevant definitions in the CWPA:
- “Employee” means an individual appointed by the governor, or employed or holding office in a state agency. (Section 8547.2 (a).)
- “Protected disclosure” means a good faith communication that discloses or demonstrates an intention to disclose information that may show either (1) an improper governmental activity, or (2) a condition that may threaten the health or safety of employees or the public, if the purpose of disclosing is to remedy that condition. (Section 8547.2 (e).)
- “Improper governmental activity” means an activity by a state agency or by an employee that is undertaken in performance duties, undertaken inside a state office, or, if undertaken outside a state office by the employee, directly relates to state government, whether or not that activity is within the scope of his or her employment, and also meets at least one of the following criteria:
- It 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 a duty.
- It 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.
- It is economically wasteful, involves gross misconduct, incompetency, or inefficiency. (Section 8547.2 (c).)
- Requires the State Auditor's Office (SAO), in order to “be free of organizational impairments to independence, to be independent of the executive branch and legislative control” and “to remain free from the influence of existing control agencies that could be the subject of audits conducted by the office.” (Sections 8543, 8546.)
- Ensures the confidentiality of all protected disclosures, including a good faith communication to the SAO alleging an improper governmental activity and any evidence delivered to the SAO in support of the allegation. (Section 8547.2 (e).)
- Prohibits state employees and officers 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 CWPA. (Section 8547.3 (a).)
- Requires the SAO to accept complaints by mail and via Internet, and to conduct investigations of alleged improper governmental activities, and authorizes the SAO to issue reports of its findings including recommended corrective actions if it finds reasonable cause to believe an improper governmental activity has occurred. (Sections 8547.4, 8547.5, 8547.7.)
- Allows a state employee or applicant for state employment (including an employee of the SAO or applicant for employment at the SAO) who files a written complaint with their 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 to also file a copy of the written complaint with the State Personnel Board (SPB), together with a sworn statement that the contents of the written complaint are true. (Section 8547.8 (a).)
- Authorizes a city, county, or city and county auditor or controller who is elected to office to maintain a whistleblower hotline to receive calls from persons who have information regarding fraud, waste, or abuse by local government employees. (Section 53087.6 (a).)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: This bill seeks to modernize the California Whistleblower Protection Act (CWPA) and whistleblower hotline laws in order to enhance their efficacy. According to the author:
Assembly Bill 2455, also known as The Whistleblower Protection Enhancement Act, strengthens and modernizes local and state whistleblower hotline laws and adds protections to prevent the misuse of state funds. These changes improve accountability, increase public trust, and ensure government actions and transactions are transparent.
The California Whistleblower Protection Act (CWPA) authorizes the State Auditor to receive and investigate complaints of alleged improper governmental activities, and also protects every state employee who files a complaint from suffering any retaliation by their state employer for having made the complaint. (Government Code Section 8547 et seq.) State employees, internal auditors of state agencies, and any persons obtaining services from the State, including contractors who do business with the state and job applicants, may file a complaint under the CWPA with the State Auditor.
Existing law also authorizes local governments to maintain a whistleblower hotline to receive reports of “fraud, waste, or abuse by local government employees.” (Government Code Section 553087.6 (a)(1).) The statute further authorizes the auditor or controller of the local jurisdiction to refer calls received on the hotline to the appropriate government authority for review and possible investigation. (Section 53087.6 (b).)
This bill modernizes whistleblower statutes in six ways.
First, the CWPA currently defines “improper governmental activities” as an activity by a state agency or an employee done as part of the employee’s duties, inside a state office, or, if undertaken outside a state office by the employee, relates to state government, whether or not it is within the scope of their employment and is a 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 a duty. (Section 8547.2 (c).) Put more succinctly, an “improper governmental activity” refers to an action by an agency or employee that violates a state or federal law such as corruption, bribery, or misuse of government property. AB 2455 expands the definition of “improper governmental activity” to include the misuse of state expenditures, including allocations, loans, or grants. This change to existing law seems a logical approach to ensuring that any misuse of state dollars, whether the improper use was carried out by a government agency or a grant recipient, is subject to the CWPA.
Second, existing law authorizes the State Auditor’s Office (SAO) to conduct an independent investigation of alleged improper governmental activity. Existing law also authorizes 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.” In both circumstances, existing law authorizes the SAO or independent investigator to report the results of their investigation to the Attorney General and policy committees of the Senate and Assembly with jurisdiction over the subject. (Section 8547.5 (c)(1) – (2).) In order to increase legislative oversight over findings regarding improper governmental activity, this bill would authorize the SAO or independent investigator to report their findings to the Assembly and Senate Budget Committees and the Joint Legislative Audit Committee, if they determine it to be appropriate.
Third, the CWPA currently authorizes a state employee or applicant to file a written complaint alleging acts or attempted acts of retaliation for protected whistleblower activities to also file a complaint with the State Personnel Board (SPB). Existing law requires the complaint to be filed within 12 months of the most recent act of reprisal complained about. (Section 8547.8 (a).) Acknowledging that acts of retaliation may continue past the initial incident, AB 2455 would grant the SPB discretion to accept such complaints within five years of the most recent act of reprisal complained about. Importantly, the language of the bill grants the SPB discretion, and does not mandate that they accept any complaint filed after the existing 12-month timeline.
Fourth, existing law authorizes local governments to maintain a whistleblower hotline to receive calls from individuals who have information regarding “fraud, waste, or abuse by local government employees” and establishes procedures for administering the hotline and responding to reports of misconduct. (Government Code Section 53087.6 et seq.) This bill proposes two changes to these provisions. First, the bill strikes reference to “fraud, waste, or abuse by local government employees,” and replaces the phrase with a more succinct reference to “improper governmental activity.” Second, the bill expands the scope of “improper governmental activity” (previously “fraud, waste, or abuse,”) to include any of the prohibited behaviors committed by a contractor or subcontractor. As with the amendment to the CWPA, this modification works to identify whether any government dollars were spent for improper purposes.
Fifth, the bill authorizes offices on the local level tasked with administering the whistleblower hotlines to identify a designee within the office to manage the hotline. The bill authorizes this designee to refer calls received on the hotline to the appropriate office for review and potential investigation, and requires them to hold in confident information disclosed through the hotline, among various other responsibilities of the hotline administrator. This modification seems a reasonable approach to ensure would-be reports are appropriately fielded and receive sufficient attention.
Finally, the bill makes various amendments to modernize the language found throughout these statutes. The bill includes specifying that a “call” is not limited to a phone call, but instead includes any method of communication a person may choose to submit information to the auditor or controller including a hotline, “that may include in-person notification, telephone call or voicemail, electronic mail, electronic text message, online form submission, facsimile, or other similar means.” The language also specifies that “hotline” does not mean only a phone line, but rather “any method of communication” established by the local government.
ARGUMENTS IN SUPPORT: This bill is sponsored by the County of Los Angeles, and supported by the California State Association of Counties (CSAC), Rural County Representatives of California (RCRC), and Urban Counties of California (UCC). In support of the bill, CSAC submits the following:
Local government agencies increasingly depend on private contractors to aid in delivering services to their communities. To ensure the Whistleblower Protection Act can fulfill its mission to prevent waste of government resources, it is crucial to safeguard whistleblowers, not only when exposing misconduct within government operations but also in the companies they enlist as contractors.
In 2002, the California legislature passed the Whistleblower Protection Act to protect employees who report unlawful activities. This legislation inspired local governments to implement whistleblower hotlines that provide a location to file reports that disclose fraudulent and wasteful activity, in hopes of saving taxpayers money and making government operations more efficient. AB 2455 modernizes the law by providing clarity in the law to ensure that whistleblowers know their activity is protected not just when reporting improper governmental activities by phone, but also when submitting complaints via online portals or email.
Finally, the bill improves governmental efficiency by allowing the designees of county auditors, controllers, and auditor-controllers to review and investigate whistleblower complaints.
As counties increasingly rely on private contractors, AB 2455 would modernize the current whistleblower laws to help ensure democratic longevity.
REGISTERED SUPPORT / OPPOSITION:
Support
County of Los Angeles Board of Supervisors (sponsor)
California State Association of Counties
Rural County Representatives of California (RCRC)
Urban Counties of California (UCC)
Opposition
None on file
Analysis Prepared by: Manuela Boucher-de la Cadena / JUD. / (916) 319-2334
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