GOVERNMENT CODESECTION 8547-8547.15

8547. This article shall be known and may be cited as the"California Whistleblower Protection Act."

8547.1. The Legislature finds and declares that state employeesshould be free to report waste, fraud, abuse of authority, violationof law, or threat to public health without fear of retribution. TheLegislature further finds and declares that public servants bestserve the citizenry when they can be candid and honest withoutreservation in conducting the people's business.

8547.2. For the purposes of this article, the following terms havethe following meanings: (a) "Employee" means an individual appointed by the Governor, oremployed or holding office in a state agency as defined by Section11000, including, for purposes of Sections 8547.3 to 8547.7,inclusive, an employee of the California State University, or anindividual appointed by the Legislature to a state board orcommission and who is not a Member or employee of the Legislature. Inaddition, "employee" means a person employed by the Supreme Court, acourt of appeal, a superior court, or the Administrative Office ofthe Courts for the purposes of Sections 8547.3 to 8547.7, inclusive,and Section 8547.13, except for those provisions of Section 8547.4concerning notice of adverse action and the State Personnel Board."Employee" includes a former employee who met the criteria of thissubdivision during his or her employment. (b) "Illegal order" means a directive to violate or assist inviolating a federal, state, or local law, rule, or regulation, or anorder to work or cause others to work in conditions outside of theirline of duty that would unreasonably threaten the health or safety ofemployees or the public. (c) "Improper governmental activity" means an activity by a stateagency or by an employee that is undertaken in the performance of theemployee's duties, undertaken inside a state office, or, ifundertaken outside a state office by the employee, directly relatesto state government, whether or not that activity is within the scopeof his or her employment, and that (1) is in violation of any stateor federal law or regulation, including, but not limited to,corruption, malfeasance, bribery, theft of government property,fraudulent claims, fraud, coercion, conversion, maliciousprosecution, misuse of government property, or willful omission toperform duty, (2) is in violation of an Executive order of theGovernor, a California Rule of Court, or any policy or proceduremandated by the State Administrative Manual or State ContractingManual, or (3) is economically wasteful, involves gross misconduct,incompetency, or inefficiency. For purposes of Sections 8547.4,8547.5, 8547.7, 8547.10, and 8547.11, "improper governmental activity"includes any activity by the University of California or by anemployee, including an officer or faculty member, who otherwise meetsthe criteria of this subdivision. For purposes of Sections 8547.4,8547.5, and 8547.13, "improper governmental activity" includes anyactivity by the Supreme Court, a court of appeal, a superior court,or the Administrative Office of the Courts, or by an employeethereof, 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 anyof the foregoing. (e) "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 informationthat may evidence (1) an improper governmental activity, or (2) acondition that may significantly threaten the health or safety ofemployees or the public if the disclosure or intention to disclosewas made for the purpose of remedying that condition. Protecteddisclosure specifically includes a good faith communication to theCalifornia State Auditor's Office alleging an improper governmentalactivity and any evidence delivered to the California State Auditor'sOffice in support of the allegation. "Protected disclosure" alsoincludes, but is not limited to, a complaint made to the Commissionon Judicial Performance. (f) "State agency" is defined by Section 11000. "State agency"includes the University of California for purposes of Sections 8547.5to 8547.7, inclusive, and the California State University forpurposes of Sections 8547.3 to 8547.7, inclusive. Sections 8547.3 to8547.7, inclusive, shall apply to the Supreme Court, the courts ofappeal, the superior courts, and the Administrative Office of theCourts in the same manner as they apply to a state agency.

8547.3. (a) An employee may not directly or indirectly use orattempt to use the official authority or influence of the employeefor the purpose of intimidating, threatening, coercing, commanding,or attempting to intimidate, threaten, coerce, or command any personfor the purpose of interfering with the rights conferred pursuant tothis article. (b) For the purpose of subdivision (a), "use of official authorityor influence" includes promising to confer, or conferring, anybenefit; effecting, or threatening to effect, any reprisal; ortaking, or directing others to take, or recommending, processing, orapproving, any personnel action, including, but not limited to,appointment, promotion, transfer, assignment, performance evaluation,suspension, or other disciplinary action. (c) Any employee who violates subdivision (a) may be liable in anaction for civil damages brought against the employee by the offendedparty. (d) Nothing in this section shall be construed to authorize anindividual to disclose information otherwise prohibited by or underlaw.

8547.4. The State Auditor shall administer this article and shallinvestigate and report on improper governmental activities. If, afterinvestigating, the State Auditor finds that an employee may haveengaged or participated in improper governmental activities, theState Auditor shall prepare an investigative report and send a copyof the investigative report to the employee's appointing power.Subject to the limitations of Section 8547.5, the State Auditor mayprovide to the employee's appointing power any evidence gatheredduring the investigation that, in the judgment of the State Auditor,is necessary to support an adverse action or an action recommendedpursuant to subdivision (a) of Section 8547.7. Within 60 days afterreceiving a copy of the State Auditor's investigative report, theappointing power shall either serve a notice of adverse action uponthe employee who is the subject of the investigative report or setforth in writing its reasons for not taking adverse action. Theappointing power shall file a copy of the notice of adverse actionwith the State Personnel Board in accordance with Section 19574, andshall submit a copy to the State Auditor. If the appointing powerdoes not take adverse action within 60 days of receiving a copy ofthe State Auditor's investigative report, it shall submit its writtenreasons for not doing so to the State Auditor and the StatePersonnel Board, and adverse action may be taken as provided inSection 19583.5. Any employee who is served with a notice of adverseaction may appeal to the State Personnel Board in accordance withSection 19575.

8547.5. (a) The State Auditor shall create the means for thesubmission of allegations of improper governmental activity both bytransmission via mail or other carrier to a specified mailing addressand electronic submission through an Internet Web site portal. TheState Auditor may request that a person submitting an allegationprovide his or her name and contact information and provide the namesand contact information for any persons who could help tosubstantiate the claim. However, the State Auditor shall not requireany person submitting an allegation to provide his or her name orcontact information and shall clearly state on the agency InternetWeb site that this information is not required in order to submit anallegation. (b) Upon receiving specific information that any employee or stateagency has engaged in an improper governmental activity, the StateAuditor may conduct an investigation of the matter. The identity ofthe person providing the information that initiated theinvestigation, or of any person providing information in confidenceto further an investigation, shall not be disclosed without theexpress permission of the person providing the information exceptthat the State Auditor may make the disclosure to a law enforcementagency that is conducting a criminal investigation.

8547.6. (a) The State Auditor may request the assistance of anystate department, agency, or employee in evaluating an allegation orconducting any investigation of an improper governmental activity asauthorized by this article. In response to a request for assistancefrom the State Auditor, that state department, agency, or employeeshall provide the assistance, including, but not limited to,providing access to documents or other information in a timelymanner, as required by Section 8545.2. If an investigation conductedby the State Auditor involves access to confidential academic peerreview records of University of California academic personnel, theserecords shall be provided in a form consistent with university policyeffective on August 1, 1992. No information obtained from the StateAuditor by any department, agency, or employee as a result of theState Auditor's request for assistance, nor any information obtainedthereafter as a result of further investigation, shall be divulged ormade known to any person without the prior approval of the StateAuditor. (b) As an alternative to conducting its own investigation, if theState Auditor determines that there is reasonable cause to believethat a state agency or employee may have engaged in an impropergovernmental activity, the State Auditor, subject to the limitationsof Section 8547.5, may refer the allegation to the involved stateagency, or to another state agency having direct oversight of theinvolved state agency, to conduct an investigation of the allegationunder the State Auditor's supervision. If the State Auditor refers anallegation to the involved state agency or to another state agencyhaving direct oversight of the involved state agency, that stateagency shall investigate the allegation and report the results of theinvestigation to the State Auditor within 60 days of the referraland monthly thereafter until final action has been taken. Inaddition, whenever the State Auditor determines that there isreasonable cause to believe that a state agency or employee may haveengaged in an improper governmental activity, the State Auditor,subject to the limitations of Section 8547.5, may refer theallegation to a criminal or administrative law enforcement agency inlieu of conducting or supervising an investigation of the matter.

8547.7. (a) If, after investigating an allegation, the StateAuditor finds that a state agency or employee may have engaged orparticipated in an improper governmental activity, he or she shallprepare an investigative report and send a copy of that report to thehead of the agency involved and to the head of any other agency thathas direct oversight over that involved agency. The investigativereport may include the State Auditor's recommended actions to preventthe continuation or recurrence of the activity. If appropriate, theState Auditor shall report this information to the Attorney General,the policy committees of the Senate and Assembly having jurisdictionover the subject involved, and to any other authority that the StateAuditor determines appropriate. Subject to the limitations of Section8547.5, the State Auditor may provide to the involved agency anyevidence gathered during the investigation that, in the judgment ofthe State Auditor, is necessary to support any of therecommendations. Within 60 days of receiving the State Auditor'sinvestigative report, the involved agency shall report to the StateAuditor any actions that it has taken or that it intends to take toimplement the recommendations. The agency shall file subsequentreports on a monthly basis until final action has been taken. (b) The State Auditor shall not have any enforcement power. In anycase in which the State Auditor finds that a state agency oremployee may have engaged in an improper governmental activity, theState Auditor may provide the finding, and any evidence supportingthe finding, subject to the limitations of Section 8547.5, to acriminal law enforcement agency, an administrative law enforcementagency, or a licensing agency that has authority to investigate thematter. (c) The State Auditor shall keep confidential every investigation,including, but not limited to, all investigative files and workproduct, except that the State Auditor, whenever he or she determinesit necessary to serve the interests of the state, and subject to thelimitations of Section 8547.5, may issue a public report of aninvestigation that has substantiated an improper governmentalactivity, keeping confidential the identity of the employee oremployees involved. In addition, subject to the limitations ofSection 8547.5, the State Auditor may release any findings orevidence supporting any findings resulting from an investigationconducted pursuant to this article whenever the State Auditordetermines it necessary to serve the interests of the state. (d) This section does not limit any authority conferred upon theAttorney General or any other department or agency of government toinvestigate any matter.

8547.8. (a) A state employee or applicant for state employment whofiles a written complaint with his or her supervisor, manager, or theappointing power alleging actual or attempted acts of reprisal,retaliation, threats, coercion, or similar improper acts prohibitedby Section 8547.3, may also file a copy of the written complaint withthe State Personnel Board, together with a sworn statement that thecontents of the written complaint are true, or are believed by theaffiant to be true, under penalty of perjury. The complaint filedwith the board, shall be filed within 12 months of the most recentact of reprisal complained about. (b) Any person who intentionally engages in acts of reprisal,retaliation, threats, coercion, or similar acts against a stateemployee or applicant for state employment for having made aprotected disclosure, is subject to a fine not to exceed ten thousanddollars ($10,000) and imprisonment in the county jail for a periodnot to exceed one year. Pursuant to Section 19683, any state civilservice employee who intentionally engages in that conduct shall bedisciplined by adverse action as provided by Section 19572. (c) In addition to all other penalties provided by law, any personwho intentionally engages in acts of reprisal, retaliation, threats,coercion, or similar acts against a state employee or applicant forstate employment for having made a protected disclosure shall beliable in an action for damages brought against him or her by theinjured party. Punitive damages may be awarded by the court where theacts of the offending party are proven to be malicious. Whereliability has been established, the injured party shall also beentitled to reasonable attorney's fees as provided by law. However,any action for damages shall not be available to the injured partyunless the injured party has first filed a complaint with the StatePersonnel Board pursuant to subdivision (a), and the board hasissued, 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 orfailing to take a personnel action with respect to any state employeeor applicant for state employment if the appointing power, manager,or supervisor reasonably believes any action or inaction is justifiedon the basis of evidence separate and apart from the fact that theperson has made a protected disclosure as defined in subdivision (b)of Section 8547.2. (e) In any civil action or administrative proceeding, once it hasbeen demonstrated by a preponderance of evidence that an activityprotected by this article was a contributing factor in the allegedretaliation against a former, current, or prospective employee, theburden of proof shall be on the supervisor, manager, or appointingpower to demonstrate by clear and convincing evidence that thealleged action would have occurred for legitimate, independentreasons even if the employee had not engaged in protected disclosuresor refused an illegal order. If the supervisor, manager, orappointing power fails to meet this burden of proof in an adverseaction against the employee in any administrative review, challenge,or adjudication in which retaliation has been demonstrated to be acontributing factor, the employee shall have a complete affirmativedefense in the adverse action. (f) Nothing in this article shall be deemed to diminish therights, privileges, or remedies of any employee under any otherfederal or state law or under any employment contract or collectivebargaining agreement.

8547.9. Notwithstanding Section 19572, if the State Personnel Boarddetermines that there is a reasonable basis for an allegedviolation, or finds an actual violation of Section 8547.3 or 19683,it shall transmit a copy of the investigative report to the StateAuditor. All working papers pertaining to the investigative reportshall be made available under subpoena in a civil action broughtunder Section 19683.

8547.10. (a) A University of California employee, including anofficer or faculty member, or applicant for employment may file awritten complaint with his or her supervisor or manager, or with anyother university officer designated for that purpose by the regents,alleging actual or attempted acts of reprisal, retaliation, threats,coercion, or similar improper acts for having made a protecteddisclosure, together with a sworn statement that the contents of thewritten complaint are true, or are believed by the affiant to betrue, under penalty of perjury. The complaint shall be filed within12 months of the most recent act of reprisal complained about. (b) Any person who intentionally engages in acts of reprisal,retaliation, threats, coercion, or similar acts against a Universityof California employee, including an officer or faculty member, orapplicant for employment for having made a protected disclosure, issubject to a fine not to exceed ten thousand dollars ($10,000) andimprisonment in the county jail for up to a period of one year. Anyuniversity employee, including an officer or faculty member, whointentionally engages in that conduct shall also be subject todiscipline by the university. (c) In addition to all other penalties provided by law, any personwho intentionally engages in acts of reprisal, retaliation, threats,coercion, or similar acts against a university employee, includingan officer or faculty member, or applicant for employment for havingmade a protected disclosure shall be liable in an action for damagesbrought against him or her by the injured party. Punitive damages maybe awarded by the court where the acts of the offending party areproven to be malicious. Where liability has been established, theinjured party shall also be entitled to reasonable attorney's fees asprovided by law. However, any action for damages shall not beavailable to the injured party unless the injured party has firstfiled a complaint with the university officer identified pursuant tosubdivision (a), and the university has failed to reach a decisionregarding that complaint within the time limits established for thatpurpose by the regents. Nothing in this section is intended toprohibit the injured party from seeking a remedy if the universityhas not satisfactorily addressed the complaint within 18 months. (d) This section is not intended to prevent a manager orsupervisor from taking, directing others to take, recommending, orapproving any personnel action or from taking or failing to take apersonnel action with respect to any university employee, includingan officer or faculty member, or applicant for employment if themanager or supervisor reasonably believes any action or inaction isjustified on the basis of evidence separate and apart from the factthat the person has made a protected disclosure. (e) In any civil action or administrative proceeding, once it hasbeen demonstrated by a preponderance of the evidence that an activityprotected by this article was a contributing factor in the allegedretaliation against a former, current, or prospective employee, theburden of proof shall be on the supervisor, manager, or appointingpower to demonstrate by clear and convincing evidence that thealleged action would have occurred for legitimate, independentreasons even if the employee had not engaged in protected disclosuresor refused an illegal order. If the supervisor, manager, orappointing power fails to meet this burden of proof in an adverseaction against the employee in any administrative review, challenge,or adjudication in which retaliation has been demonstrated to be acontributing factor, the employee shall have a complete affirmativedefense in the adverse action. (f) Nothing in this article shall be deemed to diminish therights, privileges, or remedies of any employee under any otherfederal or state law or under any employment contract or collectivebargaining agreement.

8547.11. (a) A University of California employee, including anofficer or faculty member, may not directly or indirectly use orattempt to use the official authority or influence of the employeefor the purpose of intimidating, threatening, coercing, commanding,or attempting to intimidate, threaten, coerce, or command any personfor the purpose of interfering with the right of that person todisclose to a University of California official, designated for thatpurpose by the regents, or the State Auditor matters within the scopeof this article. (b) For the purpose of subdivision (a), "use of official authorityor influence" includes promising to confer, or conferring, anybenefit; effecting, or threatening to effect, any reprisal; or takingor directing others to take, or recommending, processing, orapproving, any personnel action, including, but not limited to,appointment, promotion, transfer, assignment, performance evaluation,suspension, or other disciplinary action. (c) Any employee who violates subdivision (a) may be liable in anaction for civil damages brought against the employee by the offendedparty. (d) Nothing in this section shall be construed to authorize anindividual to disclose information otherwise prohibited by or underlaw.

8547.12. (a) A California State University employee, including anofficer or faculty member, or applicant for employment may file awritten complaint with his or her supervisor or manager, or with anyother university officer designated for that purpose by the trustees,alleging actual or attempted acts of reprisal, retaliation, threats,coercion, or similar improper acts for having made a protecteddisclosure, together with a sworn statement that the contents of thewritten complaint are true, or are believed by the affiant to betrue, under penalty of perjury. The complaint shall be filed within12 months of the most recent act of reprisal complained about. (b) Any person who intentionally engages in acts of reprisal,retaliation, threats, coercion, or similar acts against a CaliforniaState University employee, including an officer or faculty member, orapplicant for employment for having made a protected disclosure, issubject to a fine not to exceed ten thousand dollars ($10,000) andimprisonment in the county jail for up to a period of one year. Anyuniversity employee, including an officer or faculty member, whointentionally engages in that conduct shall also be subject todiscipline by the university. (c) In addition to all other penalties provided by law, any personwho intentionally engages in acts of reprisal, retaliation, threats,coercion, or similar acts against a university employee, includingan officer or faculty member, or applicant for employment for havingmade a protected disclosure shall be liable in an action for damagesbrought against him or her by the injured party. Punitive damages maybe awarded by the court where the acts of the offending party areproven to be malicious. Where liability has been established, theinjured party shall also be entitled to reasonable attorney's fees asprovided by law. However, any action for damages shall not beavailable to the injured party unless the injured party has firstfiled a complaint with the university officer identified pursuant tosubdivision (a), and the university has failed to reach a decisionregarding that complaint within the time limits established for thatpurpose by the trustees. Nothing in this section is intended toprohibit the injured party from seeking a remedy if the universityhas not satisfactorily addressed the complaint within 18 months. (d) This section is not intended to prevent a manager orsupervisor from taking, directing others to take, recommending, orapproving any personnel action, or from taking or failing to take apersonnel action with respect to any university employee, includingan officer or faculty member, or applicant for employment if themanager or supervisor reasonably believes any action or inaction isjustified on the basis of evidence separate and apart from the factthat the person has made a protected disclosure. (e) In any civil action or administrative proceeding, once it hasbeen demonstrated by a preponderance of the evidence that an activityprotected by this article was a contributing factor in the allegedretaliation against a former, current, or prospective employee, theburden of proof shall be on the supervisor, manager, or appointingpower to demonstrate by clear and convincing evidence that thealleged action would have occurred for legitimate, independentreasons even if the employee had not engaged in protected disclosuresor refused an illegal order. If the supervisor, manager, orappointing power fails to meet this burden of proof in an adverseaction against the employee in any administrative review, challenge,or adjudication in which retaliation has been demonstrated to be acontributing factor, the employee shall have a complete affirmativedefense in the adverse action. (f) Nothing in this article shall be deemed to diminish therights, privileges, or remedies of any employee under any otherfederal or state law or under any employment contract or collectivebargaining agreement. (g) If the provisions of this section are in conflict with theprovisions of a memorandum of understanding reached pursuant toChapter 12 (commencing with Section 3560) of Division 4 of Title 1,the memorandum of understanding shall be controlling without furtherlegislative action.

8547.13. (a) As used in this section: (1) "Agency" means the Supreme Court, the courts of appeal, thesuperior courts, or the Administrative Office of the Courts. (2) "Employee" means a person employed by the Supreme Court, acourt of appeal, a superior court, or the Administrative Office ofthe Courts. (b) An employee or applicant for employment who files a writtencomplaint with his or her supervisor, manager, or any other agencyofficer designated for that purpose by the agency, alleging actual orattempted acts of reprisal, retaliation, threats, coercion, orsimilar improper acts prohibited by Section 8547.3, may also file acopy of the written complaint with the State Personnel Board,together with a sworn statement that the contents of the writtencomplaint are true, or are believed by the affiant to be true, underpenalty of perjury. The complaint shall be filed within 12 months ofthe most recent act complained about. (c) The State Personnel Board shall investigate any complaintfiled, in accordance with the procedures of this chapter, and make arecommendation to the hiring entity of the agency of the employee orapplicant regarding whether retaliation resulted in an adverse actionregarding the employee and, if so, what steps should be taken toremedy the situation. (d) Except to the extent that justices and judges subject to thejurisdiction of the Commission on Judicial Performance are immunefrom liability under the doctrine of judicial immunity, a person whointentionally engages in acts of reprisal, retaliation, threats,coercion, or similar acts against an employee or applicant foremployment for having made a protected disclosure, is subject to afine not to exceed ten thousand dollars ($10,000) and imprisonment ina county jail for up to one year. An employee who intentionallyengages in that conduct also shall be subject to discipline by theagency. This subdivision does not limit any other sanction that maybe applicable by law. (e) In addition to all other penalties provided by law, except tothe extent that justices and judges subject to the jurisdiction ofthe Commission on Judicial Performance are immune from liabilityunder the doctrine of judicial immunity, a person who intentionallyengages in acts of reprisal, retaliation, threats, coercion, orsimilar acts against an employee or applicant for employment forhaving made a protected disclosure shall be liable in an action fordamages brought against him or her by the injured party. Punitivedamages may be awarded by the court if the acts of the offendingparty are proven to be malicious. If liability is established, theinjured party also shall be entitled to reasonable attorney's fees asprovided by law. It is not a prerequisite for an action for damagesfor the injured party to first file a complaint pursuant tosubdivision (b). (f) This section is not intended to prevent a manager orsupervisor from taking, directing others to take, recommending, orapproving any personnel action, or from taking or failing to take apersonnel action with respect to an employee or applicant foremployment, if the manager or supervisor reasonably believes anyaction or inaction is justified on the basis of evidence separate andapart from the fact that the person has made a protected disclosure. (g) In a civil action or administrative proceeding, once it hasbeen demonstrated by a preponderance of the evidence that an activityprotected by this article was a contributing factor in the allegedretaliation against a former, current, or prospective employee, theburden of proof shall be on the supervisor, manager, or appointingpower to demonstrate by clear and convincing evidence that thealleged action would have occurred for legitimate, independentreasons even if the employee had not engaged in protected disclosuresor refused an illegal order. If the supervisor, manager, orappointing power fails to meet this burden of proof against theemployee in an administrative review, challenge, or adjudication inwhich retaliation has been demonstrated to be a contributing factor,the employee shall have a complete affirmative defense on the issueof retaliation. (h) Nothing in this article shall be deemed to diminish therights, privileges, or remedies of an employee under any otherfederal or state law or under any employment contract or collectivebargaining agreement. (i) An employee shall not directly or indirectly use or attempt touse the official authority or influence of the employee for thepurpose of intimidating, threatening, coercing, commanding, orattempting to intimidate, threaten, coerce, or command a person forthe purpose of interfering with the right of that person to discloseto an agency official, designated for that purpose by the agency, orthe State Auditor matters within the scope of this article. For thepurpose of this subdivision, "use of official authority or influence"includes all of the following: (1) Promising to confer, or conferring, any benefit. (2) Effecting, or threatening to effect, any reprisal. (3) Taking or directing others to take, or recommending,processing, or approving, any personnel action, including, but notlimited to, appointment, promotion, transfer, assignment, performanceevaluation, suspension, or other disciplinary action. (j) Except to the extent that justices and judges subject to thejurisdiction of the Commission on Judicial Performance are immunefrom liability under the doctrine of judicial immunity, an employeewho violates subdivision (i) is subject to an action for civildamages brought against the employee by the injured party. (k) Nothing in this section shall be construed to authorize anindividual to disclose any information, the disclosure of which isotherwise prohibited by law.

8547.15. An action for damages pursuant to this article shall notbe subject to the claims presentation requirements of the GovernmentClaims Act (Division 3.6 (commencing with Section 810) of Title 1).