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California Supreme Court:
Whistleblower Statute Does Not Protect Elected Officials
Opinion Says Labor Code Section Prohibiting Retaliation Against Employees Does Not Cover City Treasurer Who Alleged That Inglewood Council Reduced Her Salary After She Raised Concerns Over Finances
By Kimber Cooley, associate editor
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WANDA BROWN former treasurer, City of Inglewood |
The California Supreme Court held yesterday that an elected official may not invoke a provision of the Labor Code that prohibits an employer from retaliating against an employee who blows the whistle on wrongdoing, saying that the language and legislative history of the provision make clear that such officeholders are excluded from coverage.
At issue is Labor Code §1102.5(b), which provides:
“An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information…to a government or law enforcement agency, to a person…who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body…if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or…a local, state, or federal rule…, regardless of whether disclosing the information is part of the employee’s job duties.”
“Employee” is defined in §1106 to include, among others, “any individual employed by the state or…any…city.” A covered worker who has suffered mistreatment in violation of §1102.5(b) may file a civil action for damages against the employer.
Justice Martin J. Jenkins authored yesterday’s unanimous opinion, saying:
“In this case, we consider whether an elected treasurer of the City of Inglewood is an employee under section 1106 who may invoke section 1102.5’s protections and sue for retaliation. We conclude such an elected official may not invoke the statute’s protections.”
Complaint Filed
The question arose after Wanda Brown, who served as treasurer of the City of Inglewood from 1987 until her retirement last October, filed a complaint in 2021 against the municipality, Mayor James Butts Jr., and council members, asserting causes of action for retaliation, defamation, and intentional infliction of emotional distress.
In the operative complaint, she claimed that she wrote to Butts and several councilmembers in 2019 and 2020, raising concerns about the city’s finances and specifically alleging that the mayor had approved an overpayment of approximately $77,000 to contractor Pinner Construction in violation of a Penal Code section prohibiting the misappropriation of public funds.
She alleged:
“Treasurer Brown’s reported concerns were met not with understanding and appreciation, but rather with the…most outrageous, intolerable, indecent, extreme, wicked, despicable retaliatory conduct conceivable….[D]efendant BUTTS (and his Council) proceeded to retaliate against Treasurer Brown by: (1) issuing an Order that the Treasurer not be given access to the City’s financial records; (2) reducing her salary by 83% from $8,355 per month to just over $1,404 per month; (3) taking away Plaintiff’s seat at the City Council meetings; (4) stripping Plaintiff of nearly all her long-held duties as City Treasurer…; (5) locking Plaintiff and her Staff out of City Hall and their offices; and, (6) deactivating Plaintiff s office computer.”
Motion to Strike
The defendants responded by filing a motion to strike under the anti-SLAPP statute, found at Code of Civil Procedure §425.16. Los Angeles Superior Court Judge Deirdre Hill denied the request as to the §1102.5 retaliation claim and the accompanying intentional infliction of emotional damages cause of action, reasoning that they arose from the purported reprisals and not from activities protected by the law.
Hill granted the request as to the defamation cause of action and the related intentional infliction of emotional distress claim.
Div. One of this district’s Court of Appeal reversed the denial as to the individual defendants on the retaliation claims, applying the two-step analytical framework governing anti-SLAPP motions. The court found that the causes of action did arise from protected activities under the anti-SLAPP statute, but concluded that Brown failed to show a probability of prevailing on the merits because she was not an “employee” as defined in §1102.5.
Yesterday’s decision affirms the judgment of the Court of Appeal.
Statutory Text
Jenkins said “[w]e begin with the text” of the legislation and noted that the definition provided in §1106 did not explicitly deal with whether the term “employee” covers elected officials. He wrote:
“Nor can we derive an answer from language in the statute stating that the term ‘employee includes, but is not limited to, any individual employed’ by various public entities, such as the state, counties, and cities….The phrase ‘not limited to’ must be read in conjunction with the examples the statute sets forth—here, individuals ‘employed by’ various public entities….Given that each of the examples of employees…invokes the earlier phrase ‘employed by,’ the phrase ‘but not limited to’ does not indicate an intent to reach beyond employees and does not resolve the specific question before us: whether the term…encompasses elected officials such as Brown.”
Noting that “California statutes, in defining the term ‘employee’ or ‘public employee,’ sometimes expressly include elected officials and sometimes expressly exclude them,” he concluded that the statutory text is inconclusive and turned to the legislative history for guidance.
Public Employees
The jurist pointed out that §1106 was drafted in 1992 to expand coverage of §1102.5’s protections to public employees due to a concern that government workers’ grievances were sometimes being administratively adjudicated by the supervisors who had allegedly engaged in the retaliation at issue. Saying that “[e]lected officials differ from rank-and-file employees,” he opined:
“When elected officials face retaliation, it is likely to come, as alleged in this case, from other elected colleagues, possibly through direct legislative action. Section 1106’s legislative history reflects no consideration of subjecting such actions to judicial scrutiny despite the potential concerns arising from interjecting the courts into the legislative process….Instead, we have a legislative focus on protecting rank-and-file public workers from the retaliation of supervisors or managers, which does not support a view of an employee as including an elected official such as Brown.”
He noted that other whistleblower laws in effect in 1992 defined “employee” to include officeholders and reasoned:
“Had the Legislature, when it enacted section 1106, wanted to include elected officers it could have taken cues from those related statutes or legal pronouncements.”
Public Policy Concerns
Addressing public policy considerations, Jenkins wrote:
“Providing maximal protection for elected officials who speak out to blow the whistle on government wrongdoing is, as Brown suggests, one reasonable policy approach….
“But defendants’ concerns implicate other reasonable policy considerations….[A]ny retaliation that elected officials face is likely to come…from official acts of elected colleagues who are themselves subject to the electorate’s retention or dismissal through the ballot box. The Legislature, consistent with statements made in cases explaining the basis for governmental immunity, might reasonably wish to channel such intramural disputes to the electoral process rather than the courtroom.”
He added:
“Exclusion of elected officials from section 1102.5 would not deprive such officials of relief potentially available under other whistleblower protections or other laws, including, as applicable, the First Amendment. Indeed, the very availability of such relief might have dissuaded legislators from bringing elected officials under section 1102.5’s umbrella.”
Rejecting the plaintiff’s assertion that the ambiguity in the statutory definition requires that the common law test of employment be applied, the jurist said:
“Brown…asserts that under a common law test, the city exercises such control over her as to compel her classification as an employee rather than an independent contractor. She points to her reduction in duties and salary and other features of her job that might suggest employment, such as her receipt of annual W-2 forms for tax purposes. We agree with defendants, however, that the common law test for employment does not affect the resolution of the statutory interpretation question before us.”
The case is Brown v. City of Inglewood, 2025 S.O.S. 1952.
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