SECTIONS 44110-44114 - California Statutes

EDUCATION CODE

SECTION 44110-44114

44110. This article shall be known and may be referred to as the
Reporting by School Employees of Improper Governmental Activities
Act.

44111. It is the intent of the Legislature that school employees
and other persons disclose, to the extent not expressly prohibited by
law, improper governmental activities.

44112. For the purposes of this article, the following terms have
the following meanings:
(a) "Employee" means a public school employee as defined in
subdivision (j) of Section 3540.1 of the Government Code.
(b) "Illegal order" means any 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 governmental activity" means an activity by a public
school agency or by an employee that is undertaken in the
performance of the employee's official duties, whether or not that
activity is within the scope of his or her employment, and that meets
either of the following descriptions:
(1) The activity violates a state or federal law or regulation,
including, but not limited to, corruption, malfeasance, bribery,
theft of government property, fraudulent claims, fraud, coercion,
conversion, malicious prosecution, misuse of government property, or
willful omission to perform duty.
(2) The activity is economically wasteful or involves gross
misconduct, incompetency, or inefficiency.
(d) "Person" means any individual, corporation, trust,
association, any state or local government, or any agency or
instrumentality of any of the foregoing.
(e) "Protected disclosure" means a good faith communication that
discloses or demonstrates an intention to disclose information that
may evidence either of the following:
(1) An improper governmental activity.
(2) Any condition that may significantly threaten the health or
safety of employees or the public if the disclosure or intention to
disclose was made for the purpose of remedying that condition.
(f) "Public school employer" has the same meaning as in
subdivision (k) of Section 3540.1 of the Government Code.

44113. (a) An employee may not directly or indirectly use or
attempt to use the official authority or influence of the employee
for the purpose of intimidating, threatening, coercing, commanding,
or attempting to intimidate, threaten, coerce, or command any person
for the purpose of interfering with the right of that person to
disclose to an official agent matters within the scope of this
article.
(b) For the purpose of subdivision (a), "use of official authority
or influence" includes promising to confer or conferring any
benefit; affecting or threatening to affect any reprisal; or taking,
directing others to take, recommending, processing, or approving any
personnel action, including, but not limited to appointment,
promotion, transfer, assignment, performance evaluation, suspension,
or other disciplinary action.
(c) For the purpose of subdivision (a), "official agent" includes
a school administrator, member of the governing board of a school
district or county board of education, county superintendent of
schools, or the Superintendent of Public Instruction.
(d) An employee who violates subdivision (a) may be liable in an
action for civil damages brought against the employee by the offended
party.
(e) Nothing in this section shall be construed to authorize an
individual to disclose information otherwise prohibited by or under
law.

44114. (a) A public school employee or applicant for employment
with a public school employer who files a written complaint with his
or her supervisor, a school administrator, or the public school
employer alleging actual or attempted acts of reprisal, retaliation,
threats, coercion, or similar improper acts prohibited by Section
44113 for having disclosed improper governmental activities or for
refusing to obey an illegal order may also file a copy of the written
complaint with the local law enforcement agency 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 local law enforcement agency shall be
filed within 12 months of the most recent act of reprisal that is the
subject of the complaint.
(b) A person who intentionally engages in acts of reprisal,
retaliation, threats, coercion, or similar acts against a public
school employee or applicant for employment with a public school
employer 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. Any public school
employee, officer, or administrator who intentionally engages in that
conduct shall also be subject to discipline by the public school
employer. If no adverse action is instituted by the public school
employer and it is determined that there is reasonable cause to
believe that an act of reprisal, retaliation, threats, coercion, or
similar acts prohibited by Section 44113 occurred, the local law
enforcement agency may report the nature and details of the activity
to the governing board of the school district or county board of
education, as appropriate.
(c) In addition to all other penalties provided by law, a person
who intentionally engages in acts of reprisal, retaliation, threats,
coercion, or similar acts against a public school employee or
applicant for employment with a public school employer for having
made a protected disclosure shall be liable in an action for damages
brought against him or her by the injured party. Punitive damages may
be awarded by the court where the acts of the offending party are
proven to be malicious. Where liability has been established, the
injured party shall also be entitled to reasonable attorney's fees as
provided by law. However, an action for damages shall not be
available to the injured party unless the injured party has first
filed a complaint with the local law enforcement agency.
(d) This section is not intended to prevent a public school
employer, school administrator, or supervisor from taking, failing to
take, directing others to take, recommending, or approving a
personnel action with respect to a public school employee or
applicant for employment with a public school employer if the public
school employer, school administrator, or supervisor reasonably
believes the 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 (e) of Section 44112.
(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 public school
employee, the burden of proof shall be on the supervisor, school
administrator, or public school employer to demonstrate by clear and
convincing evidence that the alleged action would have occurred for
legitimate, independent reasons even if the public school employee
had not engaged in protected disclosures or refused an illegal order.
If the supervisor, school administrator, or public school employer
fails to meet this burden of proof in an adverse action against the
public school employee in any administrative review, challenge, or
adjudication in which retaliation has been demonstrated to be a
contributing factor, the public school 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 a public school employee under any
other federal or state law or under an employment contract or
collective bargaining agreement.
(g) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Chapter 10.7 (commencing with Section 3540) of Division 4 of Title 1
of the Government Code, the memorandum of understanding shall be
controlling without further legislative action.