## Government Code - GOV ## TITLE 2. GOVERNMENT OF THE STATE OF CALIFORNIA [8000 - 22980] ( Title 2 enacted by Stats. 1943, Ch. 134. ) ## DIVISION 1. GENERAL [8000 - 8899.95] ( Division 1 enacted by Stats. 1943, Ch. 134. ) ## CHAPTER 6.5. California State Auditor [8543 - 8548.9] ( Heading of Chapter 6.5 amended by Stats. 2012, Ch. 281, Sec. 4. ) ## ARTICLE 3. California Whistleblower Protection Act [8547 - 8547.15] ( Heading of Article 3 (as added by Stats. 1993, Ch. 12) amended by Stats. 2003, Ch. 107, Sec. 23. ) ## 8547.13. (a) As used in this section: (1) “Agency” means the Supreme Court, the courts of appeal, the superior courts, or the Administrative Office of the Courts. (2) “Employee” means a person employed by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts. (b) An employee or applicant for employment who files a written complaint with his or her supervisor, manager, or any other agency officer designated for that purpose by the agency, 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 shall be filed within 12 months of the most recent act complained about. (c) The State Personnel Board shall investigate any complaint filed, in accordance with the procedures of this chapter, and make a recommendation to the hiring entity of the agency of the employee or applicant regarding whether retaliation resulted in an adverse action regarding the employee and, if so, what steps should be taken to remedy the situation. (d) Except to the extent that justices and judges subject to the jurisdiction of the Commission on Judicial Performance are immune from liability under the doctrine of judicial immunity, a person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against an employee or applicant for employment for having made a protected disclosure, is subject to a fine not to exceed ten thousand dollars ($10,000) and imprisonment in a county jail for up to one year. An employee who intentionally engages in that conduct also shall be subject to discipline by the agency. This subdivision does not limit any other sanction that may be applicable by law. (e) In addition to all other penalties provided by law, except to the extent that justices and judges subject to the jurisdiction of the Commission on Judicial Performance are immune from liability under the doctrine of judicial immunity, a person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against an employee or applicant for employment for having made a protected disclosure shall be liable in an action for damages brought against him or her by the injured party. Punitive damages may be awarded by the court if the acts of the offending party are proven to be malicious. If liability is established, the injured party also shall be entitled to reasonable attorney’s fees as provided by law. It is not a prerequisite for an action for damages for the injured party to first file a complaint pursuant to subdivision (b). (f) This section is not intended to prevent a manager or supervisor from taking, directing others to take, recommending, or approving any personnel action, or from taking or failing to take a personnel action with respect to an employee or applicant for employment, if the manager or supervisor reasonably believes any action or inaction is justified on the basis of evidence separate and apart from the fact that the person has made a protected disclosure. (g) In a civil action or administrative proceeding, once it has been demonstrated by a preponderance of the evidence that an activity protected by this article was a contributing factor in the alleged retaliation against a former, current, or prospective employee, the burden of proof shall be on the supervisor, manager, or appointing power to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in protected disclosures or refused an illegal order. If the supervisor, manager, or appointing power fails to meet this burden of proof against the employee in an administrative review, challenge, or adjudication in which retaliation has been demonstrated to be a contributing factor, the employee shall have a complete affirmative defense on the issue of retaliation. (h) Nothing in this article shall be deemed to diminish the rights, privileges, or remedies of an employee under any other federal or state law or under any employment contract or collective bargaining agreement. (i) An employee shall not directly or indirectly use or attempt to use the official authority or influence of the employee for the purpose of intimidating, threatening, coercing, commanding, or attempting to intimidate, threaten, coerce, or command a person for the purpose of interfering with the right of that person to disclose to an agency official, designated for that purpose by the agency, or the State Auditor matters within the scope of this article. For the purpose 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 not limited to, appointment, promotion, transfer, assignment, performance evaluation, suspension, or other disciplinary action. (j) Except to the extent that justices and judges subject to the jurisdiction of the Commission on Judicial Performance are immune from liability under the doctrine of judicial immunity, an employee who violates subdivision (i) is subject to an action for civil damages brought against the employee by the injured party. (k) Nothing in this section shall be construed to authorize an individual to disclose any information, the disclosure of which is otherwise prohibited by law. (Added by Stats. 2010, Ch. 160, Sec. 2. (AB 1749) Effective January 1, 2011.)
