SECTIONS 87160-87164 - California Statutes

EDUCATION CODE

SECTION 87160-87164

87160. This article shall be known and may be referred to as the
Reporting by Community College Employees of Improper Governmental
Activities Act.

87161. It is the intent of the Legislature that community college
employees and other persons disclose, to the extent not expressly
prohibited by law, improper governmental activities.

87162. 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 as construed
to include community college employees.
(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
community college 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 as construed
to include community college districts.

87163. (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 community college administrator, member of the governing board of a
community college district, or the Chancellor of the California
Community Colleges.
(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.

87164. (a) An employee or applicant for employment with a public
school employer who files a written complaint with his or her
supervisor, a community college administrator, or the public school
employer alleging actual or attempted acts of reprisal, retaliation,
threats, coercion, or similar improper acts prohibited by Section
87163 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 an 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. An 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
87163, the local law enforcement agency may report the nature and
details of the activity to the governing board of the community
college district.
(c) (1) The State Personnel Board shall initiate a hearing or
investigation of a written complaint of reprisal or retaliation as
prohibited by Section 87163 within 10 working days of its submission.
The executive officer of the State Personnel Board shall complete
findings of the hearing or investigation within 60 working days
thereafter, and shall provide a copy of the findings to the
complaining employee or applicant for employment with a public school
employer and to the appropriate supervisors, administrator, or
employer. This hearing shall be conducted in accordance with Section
18671.2 of the Government Code, this part, and the rules of practice
and procedure of the State Personnel Board. When the allegations
contained in a complaint of reprisal or retaliation are the same as,
or similar to, those contained in another appeal, the executive
officer may consolidate the appeals into the most appropriate format.
In these cases, the time limits described in this paragraph shall
not apply.
(2) Notwithstanding Section 18671.2 of the Government Code, no
costs associated with hearings of the State Personnel Board conducted
pursuant to paragraph (1) shall be charged to the board of
governors. Instead, all of the costs associated with hearings of the
State Personnel Board conducted pursuant to paragraph (1) shall be
charged directly to the community college district that employs the
complaining employee, or with whom the complaining applicant for
employment has filed his or her employment application.
(d) If the findings of the executive officer of the State
Personnel Board set forth acts of alleged misconduct by the
supervisor, community college administrator, or public school
employer, the supervisor, administrator, or employer may request a
hearing before the State Personnel Board regarding the findings of
the executive officer. The request for hearing and any subsequent
determination by the board shall be made in accordance with the board'
s usual rules governing appeals, hearings, investigations, and
disciplinary proceedings.
(e) If, after the hearing, the State Personnel Board determines
that a violation of Section 87163 occurred, or if no hearing is
requested and the findings of the executive officer conclude that
improper activity has occurred, the board may order any appropriate
relief, including, but not limited to, reinstatement, back pay,
restoration of lost service credit if appropriate, and the
expungement of any adverse records of the employee or applicant for
employment with a public school employer who was the subject of the
alleged acts of misconduct prohibited by Section 87163.
(f) Whenever the State Personnel Board determines that a
supervisor, community college administrator, or public school
employer has violated Section 87163, it shall cause an entry to that
effect to be made in the supervisor's, community college
administrator's, or public school employer's official personnel
records.
(g) In order for the Governor and the Legislature to determine the
need to continue or modify personnel procedures as they relate to
the investigations of reprisals or retaliation for the disclosure of
information by employees, the State Personnel Board, by June 30 of
each year, shall submit a report to the Governor and the Legislature
regarding complaints filed, hearings held, and legal actions taken
pursuant to this section.
(h) 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 an 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. Nothing in this subdivision
requires an injured party to file a complaint with the State
Personnel Board prior to seeking relief for damages in a court of
law.
(i) 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 an employee or applicant for
employment with a public school employer if the public school
employer, school administrator, or supervisor reasonably believes an
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 87162.
(j) 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, 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 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 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.
(k) 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 an employment contract or collective
bargaining agreement.
(l) 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.