The opinion
IN THE SUPREME COURT OF
CALIFORNIA
WANDA M. BROWN,
Plaintiff and Respondent,
v.
CITY OF INGLEWOOD et al.,
Defendants and Appellants.
S280773
Second Appellate District, Division One
B320658
Los Angeles County Superior Court
21STCV30604
July 7, 2025
Justice Jenkins authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Kruger,
Groban, and Evans concurred.
BROWN v. CITY OF INGLEWOOD
S280773
Opinion of the Court by Jenkins, J.
California’s Legislature has built a “powerful network” of
“whistle-blower protection laws . . . available to those who seek
to expose wrongdoing.” (Garcetti v. Ceballos (2006) 547 U.S.
410, 425.) Labor Code section 1102.5,1 a part of that network,
“provides whistleblower protections to employees.” (Lawson v.
PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 709;
§ 1102.5, subd. (b) [“An employer . . . shall not retaliate against
an employee”].) For purposes of section 1102.5, the Legislature
has defined the term “employee” so it “includes, but is not
limited to, any individual employed by the state or any
subdivision thereof, any county, city, city and county, including
any charter city or county, and any school district, community
college district, municipal or public corporation, political
subdivision, or the University of California.” (§ 1106.) 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.
Because the Court of Appeal reached the same conclusion, we
affirm its judgment.
1
Further unspecified statutory references are to the Labor
Code.
1
BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
I. BACKGROUND
Wanda Brown became the City of Inglewood’s elected
treasurer in 1987. In late 2019 and early 2020, Brown, still
occupying that role, wrote to the city and several of its officials,
including its mayor and councilmembers, raising concerns about
the city’s financial affairs. In particular, she alleged the mayor
had approved an overpayment of approximately $77,000 to a
city contractor and thereby violated Penal Code section 424’s
prohibition on misappropriating public funds. According to
Brown, the city and its officials mistreated her after she leveled
this allegation. Specifically, she alleges the following retaliatory
actions: loss of her “seat” at city council meetings; exclusion
from several city committees; reduction of her multi-million
dollar investment authority to $50,000; restrictions on her use
of investment software; deactivation of her computer; improper
exclusion from city hall based on coronavirus testing
requirements; removal from her role as General Auditor; loss of
access to city financial documents; removal of approval
authority for certain vendor requests; and reduction of her
monthly salary as treasurer from $8,000 to $1,404. (See City of
Inglewood Charter, art. IV, § 2 [“The council shall by ordinance
fix the salaries and compensation of all officers of the city”]; id.,
§ 1 [a “city treasurer” is an officer of the city]; cf. Gov. Code,
§ 36517 [for general law cities, “the city treasurer shall receive,
at stated times, a compensation fixed by ordinance or
resolution”].) Perceiving these actions to be unlawfully
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BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
motivated, Brown sued the city, its mayor, and its council
members for retaliation under Labor Code section 1102.5.2
Defendants then filed a motion to strike under California’s
anti-SLAPP statute, a procedural device that “calls for early
dismissal of meritless lawsuits if they arise from a defendant’s
acts in furtherance of free speech rights in connection with a
public issue. (Code Civ. Proc., § 425.16, subd. (b)(1).)” (Serova
v. Sony Music Entertainment (2022) 13 Cal.5th 859, 867.) In
their motion, defendants argued Brown’s section 1102.5
retaliation cause of action lacked merit because the statute
protects employees, and Brown, as an elected official who could
not be hired or fired from office, was not an employee within the
statute. Defendants referenced Brown’s statement to a local
newspaper: “I’m not an employee” but rather “elected by the
people to be their eyes, ears, and voice.”3
Brown, in opposition, argued elected city officials like
herself were employees within the meaning of the statute. To
support her claim of an employee-employer relationship, Brown
noted her regular paychecks and annual W-2 forms, which
showed typical deductions for an employee’s taxes and benefits,
such as health insurance, retirement, and workers’
2
Brown also alleged causes of action for defamation and
intentional infliction of emotional distress. Those claims are not
at issue.
3
Defendants also disputed Brown’s characterization of
events, asserting that the mayor’s overpayment was a mistake
the city timely corrected, Brown’s allegations of wrongdoing
arose only after the city rejected her request for lifetime health
benefits, and the reduction of the treasurer’s duties and salary
were legitimately motivated.
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BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
compensation. Brown also referenced the city’s power to control
her job duties and salary, and the actions it took to reduce both.
The trial court denied defendants’ anti-SLAPP motion and
declined to strike Brown’s section 1102.5 retaliation cause of
action.4 It reasoned her claim did not implicate the anti-SLAPP
statute, because it arose from the alleged reprisals, not from
defendants’ speech-related activities pertaining to governance.
(Cf. Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995,
1004 [distinguishing protected deliberations from certain
actions that follow them].) Given its conclusion, the trial court’s
anti-SLAPP ruling did not address whether Brown was an
employee.
The Court of Appeal, exercising its jurisdiction over orders
denying anti-SLAPP relief (Code Civ. Proc., § 425.16, subd. (i)),
reversed the denial as to the individual defendants (Brown v.
City of Inglewood (2023) 92 Cal.App.5th 1256). The Court of
Appeal first concluded Brown’s section 1102.5 retaliation cause
of action, as to those defendants, did arise from activity the anti-
SLAPP statute protects. (Id. at p. 1264; see generally City of
Montebello v. Vasquez (2016) 1 Cal.5th 409, 422, 426 [noting a
“distinction between public agencies and individual officials”
while holding that “council members’ votes, as well as
statements made in the course of their deliberations at the city
4
As noted, infra note 2, Brown’s complaint raised other
causes of action. Defendants’ anti-SLAPP motion challenged
those claims, too. The trial court struck a portion of the cause
of action for intentional infliction of emotional distress and the
entire cause of action for defamation, citing Civil Code section
47, which bestows privileges on government officials making
statements while discharging official duties and on those
making statements in official proceedings.
4
BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
council meeting where the votes were taken, qualify” for
protection under the anti-SLAPP statute].) Given its conclusion
that the anti-SLAPP statute applied to Brown’s retaliation
claim against these individual defendants, the Court of Appeal
then addressed whether Brown had shown “a probability” she
would “prevail” on the merits of her claim. (Code Civ. Proc.,
§ 425.16, subd. (b)(1).) The Court of Appeal found no such
probability because, as an elected official, Brown was not an
employee who could invoke section 1102.5’s protections.
(Brown, at p. 1264.) In reaching this conclusion, the court relied
on section 1106’s language, which defines “employee” for
purposes of section 1102.5 and does not mention elected officials.
The court contrasted section 1106’s language with that of
section 3351, which expressly defines the term “employee” in the
workers’ compensation context to include such elected officials.
The court concluded that this linguistic difference confirmed the
Legislature’s intent to exclude elected officials from section
1106, and thus from section 1102.5. (Id. at p. 1265.) And
because it found the statute’s language to be “clear and
unambiguous” on this question, the court declined Brown’s
request to consider the common law to elucidate which
employees sections 1106 and 1102.5 include. (Ibid.)
We granted review and limited the issue to be briefed and
argued to the following: “Are elected officials employees for
purposes of whistleblower protection under Labor Code section
1102.5, subdivision (b)?”
II. DISCUSSION
The question before us — whether the term “employee” in
section 1102.5 includes elected officials such as Brown — is one
of statutory interpretation and is governed by well-established
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BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
principles. “The proper interpretation of a statute is a question
of law we review de novo.” (People v. Curiel (2023) 15 Cal.5th
433, 461.) “ ‘ “ ‘ “[O]ur fundamental task . . . is to determine the
Legislature’s intent so as to effectuate the law’s purpose. We
first examine the statutory language, giving it a plain and
commonsense meaning. We do not examine that language in
isolation, but in the context of the statutory framework as a
whole in order to determine its scope and purpose and to
harmonize the various parts of the enactment. If the language
is clear, [we] must generally follow its plain meaning unless a
literal interpretation would result in absurd consequences the
Legislature did not intend. If the statutory language permits
more than one reasonable interpretation, [we] may consider
other aids, such as the statute’s purpose, legislative history, and
public policy.” ’ ” ’ ” (In re N.R. (2023) 15 Cal.5th 520, 538–539.)
After reviewing the statute’s language, along with all the
pertinent indicia of legislative intent, we conclude that section
1102.5 does not cover elected officials such as Brown.
A. Statutory Text
We begin with the text of sections 1102.5 and 1106.
Section 1102.5 prohibits an “employer” from “retaliat[ing]
against an employee” who blows the whistle on wrongdoing to
authorities.5 (§ 1102.5, subd. (b).) “An employee injured by
5
The statute provides in full: “An employer, or any person
acting on behalf of the employer, shall not retaliate against an
employee for disclosing information, or because the employer
believes that the employee disclosed or may disclose
information, to a government or law enforcement agency, to a
person with authority over the employee or another employee
who has the authority to investigate, discover, or correct the
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BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
prohibited retaliation may file a private suit for damages.”
(Lawson v. PPG Architectural Finishes, supra, 12 Cal.5th at p.
709.) Section 1106, which defines the term “ ‘employee’ ” for
“purposes of Sections 1102.5,” states that the term “includes, but
is not limited to, any individual employed by the state or any
subdivision thereof, any county, city, city and county, including
any charter city or county, and any school district, community
college district, municipal or public corporation, political
subdivision, or the University of California.” (§ 1106.)
Section 1106, although defining the term “employee” to
include various public entity employees, does not state whether
an “employee” or an “individual employed” by a government
entity includes an elected official. Nor does the term “employee”
itself provide the answer. Black’s Law Dictionary, to which both
parties refer, suggests the definition of employee depends on
context. (See generally People v. Braden (2023) 14 Cal.5th 791,
804 [noting potential aid of dictionary definitions in statutory
interpretation]; see also State of California v. Altus Finance
(2005) 36 Cal.4th 1284, 1296 [noting the limitations of
dictionary definitions].) In its 1990 edition, published two years
before section 1106’s enactment, Black’s Law Dictionary
explained that although the term “employee” may include “one
who works for an employer,” the term “must be distinguished
violation or noncompliance, or for providing information to, or
testifying before, any public body conducting an investigation,
hearing, or inquiry, if the employee has reasonable cause to
believe that the information discloses a violation of state or
federal statute, or a violation of or noncompliance with a local,
state, or federal rule or regulation, regardless of whether
disclosing the information is part of the employee’s job duties.”
(§ 1102.5, subd. (b).)
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BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
from ‘independent contractor,’ ‘officer,’ ‘vice-principal,’ ‘agent,’
etc.” (Black’s Law Dictionary (6th ed. 1990) p. 525.) The
dictionary cautioned that “[t]he term is often specially defined
by statutes (e.g. workers’ compensation acts; Fair Labor
Standards Act), and whether one is an employee or not within a
particular statute will depend upon facts and circumstances. In
corporation law [for instance], ‘employee’ includes an officer but
not a director.” (Black’s Law Dictionary (6th ed. 1990) p. 525.)
An earlier, 1951 version of the dictionary, which both
parties discuss even though it predates section 1106 by nearly
forty years, contains a lengthier definition of the term that,
despite its distance from section 1106’s enactment, underscores
the term’s context-specific nature. The 1951 definition notes the
word employee “may be more extensive than ‘clerk’ or ‘officer,’
and may signify any one in place, or having charge or using a
function, as well as one in office,” but also states the word refers
“usually only to clerks, workmen, laborers, etc., and . . . rarely
to the higher officers of a corporation or government.” (Black’s
Law Dictionary (4th ed. 1951) p. 617.) A comment to the 1951
definition echoes what would become part of the later, 1990
definition: “Employee” must be distinguished from ‘independent
contractor,’ ‘officer,’ ‘vice-principal,’ ‘agent,’ etc. The term is
often specially defined by statutes: and whether one is an
employee or not within a particular statute will depend upon
facts and circumstances.” (Black’s Law Dictionary (4th ed.
1951) p. 618.)
Consistent with the observation in Black’s Law Dictionary
that the term “employee” is often statute-specific, California
statutes, in defining the term “employee” or “public employee,”
sometimes expressly include elected officials and sometimes
expressly exclude them. Examples of the former include
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BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
statutes that identify persons who may receive workers’
compensation protections (Lab. Code, § 3351, subd. (b) [defining
“employee” as “every person in the service of an employer under
any appointment or contract of hire or apprenticeship . . . and
includes [¶] (b) All elected and appointed paid public officers”])6;
persons who may obtain restraining orders against workplace
violence (Code Civ. Proc., § 527.8, subd. (b)(3) [“ ‘Employee’ also
includes . . . elected and appointed public officers”]); certain
public pensioners (Gov. Code, § 7522.04, subd. (h) [“ ‘Public
employee’ ” means an officer, including one who is elected or
appointed, or an employee of a public employer”]; and persons
subject to unemployment insurance tax laws (Unemp. Ins. Code,
§ 13004 [“ ‘Employee’ . . . includes an officer, employee, or
elected official of the United States, a state, territory, or any
political subdivision thereof, or any agency or instrumentality of
any one or more of the foregoing”].)
Examples of statutes that expressly exclude elected
officials from the definition of “employee” identify persons
6
As noted, the appellate court below focused on comparing
section 1106 with section 3351, and did not mention the other
statutes we reference. (Brown v. City of Inglewood, supra, 92
Cal.App.5th at p. 1265.) Nothing indicates that the Legislature,
when it added section 1106 years after section 3351, saw these
two sections as related. Thus, a comparison of these statutes
has no unique or especially strong probative value. (See Harris
v. City of Santa Monica (2013) 56 Cal.4th 203, 218 [Even
“[w]here a provision ‘contained in a related statute was added
by amendment many years after the enactment of the statute
containing no such provision,’ and where ‘it is not apparent to
us that . . . the Legislature was necessarily concerned with
anything beside[s]’ the related statute, we have refused to
ascribe an intent to the Legislature merely on the basis of
negative inference”].)
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Opinion of the Court by Jenkins, J.
within the regulatory purview of the state’s Department of
Human Resources Agency (Gov. Code, § 19815 [“ ‘Employee’ . . .
means . . . all employees of the executive branch of government
who are not elected to office”]; those who may form public
employee bargaining organizations (Gov. Code, § 3501, subd. (d)
[“ ‘Public employee’ means any person employed by any public
agency . . . excepting those persons elected by popular vote or
appointed to office by the Governor of this state”]; Gov. Code,
§ 3540.1, subd. (j) [“ ‘employee’ means a person employed by a
public school employer except persons elected by popular vote,
persons appointed by the Governor of this state, management
employees, and confidential employees”]; see Santa Clara
County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525,
537); and government workers whose discipline may be
discussed in closed legislative sessions (Gov. Code, § 54957,
subd. (b)(4) [“ ‘employee’ . . . shall not include any elected
official”]; see Hofman Ranch v. Yuba County Local Agency
Formation Com. (2009) 172 Cal.App.4th 805, 807).
That statutes vary with respect to expressly defining the
term “employee” as including or excluding elected officials shows
that section 1106’s mere use of the term “employee” or
“employed” does not conclusively resolve the question before us.
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. (§ 1106.) The phrase “not limited to”
must be read in conjunction with the examples the statute sets
forth — here, individuals “employed by” various public entities.
“ ‘ “[I]ncluding, but not limited to” is a phrase of enlargement’ ”
but not necessarily a phrase without limits. (People v. Giordano
(2007) 42 Cal.4th 644, 660.) “While the proviso ‘including, but
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BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
not limited to’ ‘connotes an illustrative listing,’ ” the “specific
examples” listed may restrict the meaning of the defined term.
(People v. Arias (2008) 45 Cal.4th 169, 181, 182.) This follows
from the interpretive canon known as ejusdem generis, meaning
“of the same kind.” (Id. at p. 180.) The canon, which “ ‘ “applies
whether specific words follow general words in a statute or vice
versa,” ’ ” instructs that “ ‘the general term or category is
“restricted to those things that are similar to those which are
enumerated specifically.” ’ ” (Ibid.) It is based on the following
logic: Had the Legislature “ ‘intended the general words to be
used in their unrestricted sense, it would not have mentioned
the particular things or classes of things which would in that
event become mere surplusage.’ ” (Ibid.; see also International
Federation of Professional & Technical Engineers, Local 21,
AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 342; Peralta
Community College Dist. v. Fair Employment & Housing Com.
(1990) 52 Cal.3d 40, 50–51; Dyna-Med, Inc. v. Fair Employment
& Housing Com. (1987) 43 Cal.3d 1379, 1390–1391.) Given that
each of the examples of employees section 1106 lists recursively
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 “employee,” as section 1106 defines it,
encompasses elected officials such as Brown. Because the
statutory text is inconclusive, we consider additional context
and history.
B. Context and History
When “words themselves provide no definitive answer,”
we look to other interpretative aids such as legislative history
and “other statutes [that] apply to similar or analogous
subjects.” (People v. Woodhead (1987) 43 Cal.3d 1002, 1008;
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Opinion of the Court by Jenkins, J.
accord, California Teachers Assn. v. Governing Bd. of Rialto
Unified School Dist. (1997) 14 Cal.4th 627, 642 [“we interpret a
statute in context, examining other legislation on the same
subject, to determine the Legislature’s probable intent”].)
Relevant contextual and historical cues — including the
legislative history of section 1106 and of related statutes that
informed section 1106’s enactment — lead us to conclude that
the term “employee” in section 1106 was meant to exclude
elected officials such as Brown.
Initially, section 1106’s legislative history suggests a
particular purpose of protecting rank-and-file employees from
supervisors and managers, not protecting elected officials.
According to legislative analyses, “[p]roponents believe[d] that
public employees should be encouraged to report illegal
activities by supervisors and managers without fear of
retaliation,” and these proponents expressed concern that,
under current laws, public employees’ grievances were
sometimes being administratively adjudicated by the very
supervisors who had allegedly retaliated against them. (Sen.
Com. on Industrial Relations, Analysis of Assem. Bill No. 3486
(1991–1992 Reg. Sess.), as amended Apr. 21, 1991, p. 2; Sen.
Rules Com., Off. of Sen. Floor Analyses, 3d reading of Assem.
Bill No. 3486 (1991–1992 Reg. Sess.), as amended Apr. 21, 1992,
pp. 2–3 [same].) One legislative analysis accordingly
characterized the “[n]eed for the bill” as follows: “[G]overnment
employees who report illegal activity by supervisors deserve the
same rights of redress against retaliation as private sector
employees . . . . [D]uring times of fiscal restraint by public
agencies, laws should encourage workers to make public illegal
activity by supervisors and managers.” (Assem. Com. on Labor
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Opinion of the Court by Jenkins, J.
and Employment, Analysis of Assem. Bill No. 3486 (1991–1992
Reg. Sess.), as introduced Feb. 21, 1992, p. 2.)
Notably, the impetus for legislative action was a news
story about a rank-and-file municipal employee. “The bill arises
from a recent case of a local building inspector in Pomona who
complained of an act of retaliation because he reported to the
local police that his supervisor had ordered him to violate the
building inspection law. The Los Angeles District Attorney
declined to prosecute the supervisor on the basis that the anti-
retaliation provisions of the Labor Code applied only to private
sector workers.” (Sen. Rules Com., Off. of Sen. Floor Analyses,
3d reading of Assem. Bill No. 3486 (1991–1992 Reg. Sess.), as
amended Apr. 21, 1992, p. 2; accord, Sen. Com. on Industrial
Relations, Analysis of Assem. Bill No. 3486 (1991–1992 Reg.
Sess.), as amended Apr. 21, 1991, p. 3; Assem. Com. on Labor
and Employment, Analysis of Assem. Bill No. 3486 (1991–1992
Reg. Sess.), as introduced Feb. 21, 1992, p. 2.)
Elected officials differ from rank-and-file employees like
the building inspector in Pomona discussed in section 1106’s
legislative history. They report to the electorate rather than
managers or supervisors in a conventional sense. (See, e.g.,
Essick v. County of Sonoma (2022) 81 Cal.App.5th 941, 951
[“The county sheriff is a public official elected by Sonoma County
voters, and as such, is ultimately responsible to them — not to
the Board of Supervisors or anyone else in county
government”].) 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. (See
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Tenney v. Brandhove (1951) 341 U.S. 367, 378 [“In times of
political passion, dishonest or vindictive motives are readily
attributed to legislative conduct and as readily believed. Courts
are not the place for such controversies. Self-discipline and the
voters must be the ultimate reliance for discouraging or
correcting such abuses”].) 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.
Neither is such a view supported by consideration of
section 1106 in relation to the whistleblowing statutes that
informed its enactment. “ ‘ “[W]e do not construe statutes in
isolation, but rather read every statute ‘with reference to the
entire scheme of law of which it is part so that the whole may be
harmonized and retain effectiveness.’ ” ’ ” (Kim v. Reins
International California, Inc. (2020) 9 Cal.5th 73, 87.) We may
look beyond the legislative history of the provision at issue to
the history of related statutes. (Winn v. Pioneer Medical Group,
Inc. (2016) 63 Cal.4th 148, 161–162; see California Teachers
Assn. v. Governing Bd. of Rialto Unified School Dist., supra, 14
Cal.4th at p. 659 [“ ‘Both the legislative history of the statute
and the wider historical circumstances of its enactment may be
considered in ascertaining the legislative intent.’ ”].) Statutes
that “relate to the same person or thing, or class of persons or
things, or have the same purpose or object” are said to be “in
pari materia” and “should ‘be construed together so that all
parts of the statutory scheme are given effect.’ ” (Kaanaana v.
Barrett Bus. Servs. (2021) 11 Cal.5th 158, 175.) This “principle
of harmonization” has important limits. (Ibid.) Courts are not
authorized to “rewrite statutes.” (Ibid.) “Where the Legislature
chooses to define the same term differently in two different
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Opinion of the Court by Jenkins, J.
provisions, neither definition should be ‘rewritten under the
guise of an in pari materia construction.’ ” (Ibid.; accord, People
v. Valentine (1946) 28 Cal.2d 121, 142 [“ ‘Where a statute, with
reference to one subject contains a given provision, the omission
of such provision from a similar statute concerning a related
subject (in this case, the same subject) is significant to show that
a different intention existed’ ”].)
Because section 1102.5 addresses whistleblower
protections and section 1106 confers those protections on public
employees, it is reasonable, in determining the scope of
“employee” under section 1106, to consider other statutes that
address public worker whistleblowing. (See Edgerly v. City of
Oakland (2012) 211 Cal.App.4th 1191, 1201 [comparing the
language in various whistleblower statutes]; accord, Fuerst v.
Hous. Auth. of the City of Atlanta (11th Cir. 2022) 38 F.4th 860,
872, fn. 9 [“because [two different Federal laws] both deal with
whistleblower protections relating to the misuse of federal
funds, we interpret them together”].) Especially illuminating is
the way pre-existing public worker whistleblower statutes,
which informed the Legislature’s 1992 expansion of section
1102.5 to include public employees, defined the workers subject
to their protections.
The Legislature enacted section 1102.5’s whistleblower
protections in 1984. (Stats. 1984, ch. 1083, § 1; see Green v.
Ralee Engineering Co. (1998) 19 Cal.4th 66, 76.) At that time,
the statute made no mention of public employees. Eight years
later, when the Legislature enacted section 1106, it defined
“employee” for purposes of section 1102.5 to include public
employees (see Stats. 1992, ch. 1230, § 1). In doing so, it
referenced a desire to address perceived limitations in three
whistleblower statutes: section 1102.5 itself, the Reporting of
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Opinion of the Court by Jenkins, J.
Improper Government Activities Act (Gov. Code, former § 10540
et seq., addressing state employees), and the Local Government
Disclosure of Information Act (Gov. Code, § 53296 et seq.,
addressing local employees). (See Campbell v. Regents of
University of California (2005) 35 Cal.4th 311, 330–331
(Campbell); Shoemaker v. Myers (1990) 52 Cal.3d 1, 20, fn. 11
(Shoemaker).)
In particular, the Legislature understood the then-current
version of section 1102.5, which lacked any reference to public
employees, as applying to private sector employees only. (Sen.
Com. on Industrial Relations, Analysis of Assem. Bill No. 3486
(1991–1992 Reg. Sess.) as amended Apr. 21, 1992, pp. 1–2.) The
Legislature also viewed state employees’ options for redress
under the Reporting of Improper Government Activities Act as
too limited (ibid.) and, with respect to the Local Government
Disclosure of Information Act, believed there was “currently
very little protection for local public employees who must file a
complaint pursuant to the procedures of the[ir] local agency”
(id., p. 2). Employers of local government workers, moreover,
were not “subject to misdemeanor penalties” unless “malice
[could] be proved.” (Assem. Com. on Labor and Employment,
Analysis of Assem. Bill No. 3486 (1991–1992 Reg. Sess.) as
proposed to be amended Apr. 21, 1992, pp. 1–3; see Gov. Code,
§ 53928.5, subd. (b).) Section 1106 would, in light of these
observed shortcomings, expand the rights of public workers by
“defin[ing] employees in the [section 1102.5] anti-retaliation law
that applies to private sector workers to specifically include
state and local governmental employees.” (Sen. Com. on
Industrial Relations, Analysis of Assem. Bill No. 3486 (1991–
1992 Reg. Sess.) as amended Apr. 21, 1992, p. 2; see generally
Campbell, supra, 35 Cal.4th at p. 331 [discussing the legislative
16
BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
history of section 1106 and concluding “[t]he addition of section
1106 . . . was intended to extend the rights available to private
employees to include public employees, and nothing more”].)
Section 1106, however, in extending rights to public
employees, took a different approach to defining the class of
protected public workers than the two whistleblower statutes
discussed in the section’s legislative history. Notably, section
1106 did not speak in terms of officers. The Reporting of
Improper Government Activities Act provided a civil damages
action for retaliation to an injured “state employee or applicant
for state employment” if a complaint to the State Personnel
Board was filed and the board failed to make a decision on the
complaint. (Gov. Code, former §§ 10548, subd. (c); Shoemaker,
supra, 52 Cal.3d at p. 20, fn. 11, citing Stats. 1986, ch. 353, § 4–
5, pp. 1511–1512; see also Miklosy v. Regents of University of
California (2008) 44 Cal.4th 876, 891–893.)7 The statute
defined a protected “employee” as “any individual appointed by
the Governor or employed or holding office in a state department
or agency.” (Gov. Code, former § 10542; see Stats. 1981, ch.
1168, § 7.) This definition expressly distinguished between
employees, the term found in section 1106, and appointees of the
7
The Reporting of Improper Government Activities Act
also subjected “any person who intentionally engages in acts of
reprisal . . . against a state employee” to a fine up to $10,000 and
misdemeanor consequences. (Gov. Code, former § 10543, subd.
(b).) “[S]tate civil service employees” who violated the provision
were subject to further discipline. (Ibid.)
17
BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
Governor and those holding state office, terms not found in that
section.8
The second law referenced in section 1106’s legislative
history — the Local Government Disclosure of Information
Act — contained, at the time of section 1106’s enactment,
provisions “[s]imilar” to those in the Reporting of Improper
Government Activities Act, but focused on “local agency
employees.” (Shoemaker, supra, 52 Cal.3d at p. 20, fn. 11.) The
Local Government Disclosure of Information Act provided that
“any local officer, manager, or supervisor who” maliciously (Gov.
Code, § 53298.5, subd. (b)) took a prohibited “reprisal action
against any employee or applicant for employment” who filed a
8
The definition of “employee” in the Reporting of Improper
Government Activities Act long had this textual feature. (Stats.
1979, ch. 584, § 1 [“ ‘Employee’ means any individual appointed
by the Governor or employed or holding office in a state
department or agency”]; Stats. 1981, ch. 1168, § 7 [same].) The
Reporting of Improper Government Activities Act relates to
former Government Code section 19683, an anti-retaliation
provision first enacted in 1971 and retained in various forms
alongside these newer provisions until 1986. (1971 Stats., ch.
1259, § 1; Stats. 1979, ch. 584, §§ 2–3, 5; Shoemaker, supra, 52
Cal.3d at p. 20, fn. 11.) This earlier law protected a “state officer
or employee” who made protected reports of illegality to
appropriate authorities. (1971 Stats., ch. 1259, § 1; Stats. 1979,
ch. 584, §§ 2–3.)
The successor to the Reporting of Improper Government
Activities Act is the California Whistleblower Protection Act,
located at sections 8547 through 8547.15 of the Government
Code. (See Miklosy, supra, 44 Cal.4th at p. 893.) Upon its
enactment in 1993, this successor statute defined an employee
as any “individual appointed by the Governor or employed or
holding office in a state agency . . . .” (1993 Stats., ch. 12, § 8.)
Today, the definition has additional components, but retains
this language. (Gov. Code, § 8547.2, subd. (a)(1)(A).)
18
BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
statutorily authorized complaint (Gov. Code, § 53298, subd. (a))
“shall be individually liable for damages in an action brought
against him or her by the injured employee” (Gov. Code,
§ 53298.5, subd. (b)). The statute defined an employee — a
person who could file a complaint and bring suit for reprisal —
as “any person employed by a local agency.” (Gov. Code,
§ 53296, subd. (e); see Stats. 1986, ch. 353, § 7.) By contrast,
only officers, managers, and supervisors could commit
prohibited acts of reprisal. (Gov. Code, § 53298, subd. (a).)
While the act defined managers and supervisors as a subclass of
“employee[s]” with significant administrative or oversight
responsibilities (Gov. Code, § 53296, subds. (f), (g)), it defined
officers as “any appointed member of a local board, commission,
or other governing body who supervises or is responsible for the
work of one or more local agency employers” (Gov. Code,
§ 53296, subd. (h)). Thus, the Local Government Disclosure of
Information Act singled out appointed officials, as opposed to
elected ones, and, unlike section 1106, distinguished in its text
between officers and employees.9
It is noteworthy that these pre-existing whistleblower
statutes both refer to officers whereas section 1106 does not.
This omission takes on added significance in light of the
neighboring sections in the Labor Code chapter that contains
section 1106, entitled “Political Affiliations.” In particular,
section 1104 has, from its enactment some 55 years before
section 1106, differentiated between employees and officers.
9
An earlier version of the Local Government Disclosure of
Information Act would have offered protections to any “local
agency officer or employee” (Assem. Bill No. 1916 (1985–1986
Reg. Sess.) as amended Jan. 9, 1986, § 5), but an amendment
altered this language before enactment.
19
BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
(Stats. 1937, ch. 90, § 1104, p. 212.) Section 1104 provides: “In
all prosecutions under this chapter, the employer is responsible
for the acts of his managers, officers, agents, and employees.”
(§ 1104, italics added.) Since enactment, section 1106 not only
has provided the definition of “employee” for section 1102.5, but
also for section 1104. (Stats. 1992, ch. 1230, § 1.) Section 1104,
then, expressly distinguished between employees, as defined by
section 1106, and officers.
That section 1106 omits reference to those holding office
or to officers sheds light on whether its definition of “employee”
includes elected officials. We first note that the phrase “holding
office,” found in the state-worker statute (Gov. Code, former
§ 10542) but not in section 1106, generally includes not only
appointed officials but also elected ones.10 We have long used
the foregoing phrase to include elected officials. (Barrett v. Hite
(1964) 61 Cal.2d 103, 105 [“The word ‘incumbent’ is, of course,
sufficiently broad to include all persons holding office . . .
whether elected by the voters or appointed by the Governor”];
Hartford Accident & Indemnity Co. v. City of Tulare (1947) 30
Cal.2d 832, 836 [“[A] public officer who continues to perform the
duties of the office and holds office beyond the term for which he
was elected or appointed, holds office until his successor is
selected and qualifies”].) The Legislature has used the phrase
in a similarly broad fashion. (E.g., Gov. Code, § 36512 [“A
10
“There is a clear and well-understood distinction between
appointment and election.” (Mono County v. Industrial Acc.
Com. (1917) 175 Cal. 752, 754.)
20
BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
person elected to fill a vacancy holds office for the unexpired
term of the former incumbent”].)11
We next note authorities that have comparatively
evaluated the concepts of public employees and officers. Before
section’s 1106 enactment in 1992, we had noted — consistent
with the complexity described in the Black’s Law Dictionary
definitions of “employee” discussed above — that “ ‘[i]t is
difficult, perhaps impossible, to frame a definition of . . . public
officer which will be sufficiently accurate, both as to its inclusion
and its exclusion, to meet the requirements of all cases.’ ” (In re
M.M. (2012) 54 Cal.4th 530, 536, quoting Spreckels v. Graham
(1924) 194 Cal. 516, 530.) But despite any potential difficulty in
comprehensively defining public officers in comparison to public
employees — a task we do not undertake here — a law including
public employees while omitting public officers suggests an
intent to exclude elected officials. Indeed, elected positions
would seem to epitomize “ ‘the greater importance, dignity, and
11
Other examples abound. (Ed. Code, § 19427 [“Each
library trustee shall hold office until his successor is elected and
qualified”]; Health & Saf. Code, § 6482 [elected board members
“each holds office until the election and qualification of” a
successor]; id., § 6494 [an “assessor holds office . . . until the
election and qualification of” a successor]; Health & Saf. Code,
§ 6580.2 [“An officer elected or appointed pursuant to Section
6580.1 shall hold office . . . .”]; Gov. Code, § 7522.70 [concerning
“elected public officer[s]” who are “convicted during or after
holding office”]; Gov. Code, § 73757 [upon abolition of the
position of marshal, “[e]ach elected marshal holding office . . .
shall become an employee”]; Gov. Code, § 87460 [prohibiting
elected officers from receiving loans from those affiliated with
an agency “in which the elected officer holds office”]; Lab. Code,
§ 4728 [providing benefits to a “dependent of an elected public
official . . . killed while holding office”].)
21
BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
independence’ ” that might distinguish officers from employees.
(Patton v. Board of Health (1899) 127 Cal. 388, 395, quoting
People ex rel. Throop v. Langdon (1879) 40 Mich. 673, 682; see
Mechem on Public Offices, § 2 [quoting Throop].)
Two examples illustrate the point. In Wade v. Board of
Administration (1945) 67 Cal.App.2d 745, the court held that a
county charter’s grant of retirement benefits to “employees” did
not include elected officials such as the county clerk. (Id. at pp.
746, 748–752.) The electorate had twice rejected proposals to
add coverage for elected officials (id. at pp. 747–748) and the
charter elsewhere used the term “officer” or “elective officer”
when referring to such officials, rather than using the term
“employee” to include them (id. at p. 749). “The court
acknowledged that in some cases an officer may be an employee,
but an elective officer was not an employee” in that context.
(Neville v. County of Sonoma (2012) 206 Cal.App.4th 61, 79.)
In another instance, the Legislature amended a statute
permitting government bodies to hold private sessions to discuss
personnel matters. (Stats. 1975, ch. 959, § 8, p. 2241.)
Previously, Government Code section 54957 had allowed
discussion during closed sessions of matters involving a “public
officer or employee,” but the Legislature amended the provision
to allow closed sessions only for “employees,” deleting the term
“officer” and defining the term “employee” to exclude appointed
officers except the occupants of certain enumerated “nonelective
positions.” The amendment did not expressly address the fate
of elected officials. (Compare Stats. 1975, ch. 959, § 812 with
12
The 1975 definition of employee read, in full: “For the
purposes of this section, the term ‘employee’ shall not include
22
BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
Stats. 1971, ch. 587, § 1; see 59 Ops. Cal. Atty. Gen. 266 (1976)
[discussing the amendment].) The Attorney General, evaluating
the amendment in the late 1970s, repeatedly opined, “it would
appear that in no event would an officer holding an elective
office . . . fall within the ambit of section 54957.” (59 Ops. Cal.
Atty. Gen. 266 (1976); 61 Ops. Cal. Atty. Gen. 10, 12 (1978); 61
Ops. Cal. Atty. Gen. 283, 286 (1978).) In 1980, the Legislature
codified this view, modifying the definition of employee to
exclude “any person elected to office” (Stats. 1980, ch. 1284,
§ 21). As earlier noted, that exclusion remains in the present
version of the statute. (Gov. Code, § 54957, subd. (b)(4).)
Although it is not informative to compare section 1106’s
mere use of the term “employee” or “employed by” to the wide
swath of statutes both including and excluding elected officials
from the term “employee” (see infra, Part II.A), it is informative
to view section 1106 in the more specific context of the statutes
legislators had in mind during section 1106’s enactment that
referenced officers and the existing legal pronouncements
governing the categorization of elected officials. “ ‘[T]he
Legislature “ ‘is deemed to be aware of statutes and judicial
decisions already in existence, and to have enacted or amended
any person appointed to an office by the legislative body of a
local agency; provided, however, that nonelective positions of
city manager, county administrator, city attorney, county
counsel, or a department head or other similar administrative
officer of a local agency shall be considered employee positions;
and provided, further that nonelective positions of general
manager, chief engineer, legal counsel, district secretary,
auditor, assessor, treasurer or tax collector of any governmental
district supplying services within limited boundaries shall be
deemed employee positions.” (Stats. 1975, ch. 959, § 8, pp.
2241–2242.)
23
BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
a statute in light thereof.’ ” ’ ” (People v. Scott (2014) 58 Cal.4th
1415, 1424.) The Legislature is also presumed to be aware of
Attorney General opinions and their statutory constructions.
(California Building Industry Assn. v. State Water Resources
Control Bd. (2018) 4 Cal.5th 1032, 1042.) 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. (See Miklosy v. Regents of University of
California, supra, 44 Cal.4th at p. 893; People v. Licas (2007) 41
Cal.4th 362, 367 [finding a legislative intent to omit a statutory
requirement after presuming legislative awareness of that
requirement in a related statute].) It did not. Instead, the
Legislature, with a focus on rank-and-file “employee[s] . . .
employed by” public entities (§ 1106; see § 1102.5), sought “to
extend the rights available to private employees to include
public employees, and nothing more.” (Campbell, supra, 35
Cal.4th at p. 331.)13
13
The parties do not discuss that the Legislature, after
enacting section 1106, passed other public worker whistleblower
statutes authorizing worker retaliation lawsuits that contain
specific references to elected officials. Government Code section
9149.35, part of the Legislative Employee Whistleblower
Protection Act (Stats. 2018, ch. 2, § 1 (Assem. Bill No. 403)),
subjects “an individual or entity that intentionally retaliates
against a legislative employee” to a “civil action for damages
brought by a legislative employee.” The term “legislative
employee” expressly excludes “a Member of either house of the
Legislature.” (Gov. Code, § 9149.32, subd. (b).) Education Code
section 44114, part of the Reporting by School Employees of
Improper Governmental Activities Act (Stats. 2020, ch. 531
(Assem. Bill No. 2472)), subjects “a person who intentionally
engages in acts of reprisal . . . against a public school employee”
24
BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
Although we have no occasion to address other aspects of
the employee-officer distinction, context and history show the
term “employee” in section 1106, which does not reference
elected officials or officers, was meant to exclude elected officials
such as Brown.
C. Public Policy
This interpretation of section 1106 aligns with a
reasonable public policy choice. (See In re N.R., supra, 15
Cal.5th at p. 539 [policy considerations may help resolve
statutory ambiguity].) The parties disagree how public policy
considerations should weigh in our analysis of sections 1102.5
and 1106. Brown argues that “no victim of retaliation in the
to an action for damages. (Ed. Code, § 44114, subd. (c).)
Employee, in that statute, “means a person employed by a public
school employer except persons elected by popular vote, persons
appointed by the Governor of this state, management
employees, and confidential employees.” (Gov. Code, § 3540.1;
see Ed. Code, § 44112, subd. (a) [invoking the government code
definition].)
We “[o]rdinarily” give “subsequent legislative history . . .
little weight in statutory interpretation.” (Barrett v. Rosenthal
(2006) 40 Cal.4th 33, 54, fn. 17; see Reno v. Bossier Parish
School Bd. (1997) 520 U.S. 471, 484–485 [“the views of a
subsequent Congress form a hazardous basis for inferring the
intent of an earlier one”].) “[A]s time passes memories fade and
a person’s perception of [] earlier intention may change. Thus,
even when it would otherwise be useful, subsequent legislative
history will rarely override a reasonable interpretation of a
statute that can be gleaned from its language and legislative
history prior to its enactment.” (Consumer Prod. Safety Comm’n
v. GTE Sylvania, Inc. (1980) 447 U.S. 102, 118, fn. 13.) These
later-enacted statutes, which post-date section 1106 by over 25
years, do not reveal the Legislature’s intent with respect to
section 1106’s scope.
25
BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
workplace should have their claim rejected simply because they
are an elected official.” Defendants, by contrast, argue that
elected officials — given their political and public nature, given
the incentives and opportunities that exist for them to speak
out, and given the source of their authorities — are different
from the average civil servant and warrant different treatment
under section 1102.5. Citing Caldwell v. Montoya (1995) 10
Cal.4th 972, 981 and Freeny v. City of San Buenaventura (2013)
216 Cal.App.4th 1333, 1343–1344, defendants further assert
that allowing elected officials to bring claims under section
1102.5 would risk chilling vigorous participation in, or
interjecting the courts into, the legislative process, and that
courts are rightly hesitant to subject the wisdom of legislative
action to tort litigation.
Providing maximal protection for elected officials who
speak out to blow the whistle on government wrongdoing is, as
Brown suggests, one reasonable policy approach. Section
1102.5, after all, “reflects the broad public policy interest in
encouraging workplace whistle-blowers to report unlawful acts
without fearing retaliation.” (Green v. Ralee Engineering Co.,
supra, 19 Cal.4th at p. 77.) Whistleblower protections might be
“substantially weakened” if elected officials are exempted from
protections, “particularly because those officials will often be in
a good position to identify and report fraud.” (See Chippewa
Cree Tribe of the Rocky Boy’s Reservation v. United States DOI
(9th Cir. 2018) 900 F.3d 1152, 1158.)
But defendants’ concerns implicate other reasonable
policy considerations. As noted earlier in Part II.B, any
retaliation that elected officials face is likely to come, as alleged
here, from official acts of elected colleagues who are themselves
subject to the electorate’s retention or dismissal through the
26
BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
ballot box. The Legislature, consistent with statements made in
cases explaining the basis for governmental immunity,14 might
reasonably wish to channel such intramural disputes to the
electoral process rather than the courtroom. (Tenney v.
Brandhove, supra, 341 U.S. at p. 378 [“Courts are not the place
for such controversies”]; see Bogan v. Scott-Harris (1998) 523
U.S. 44, 52 [“the threat of liability may significantly deter
service in local government, where prestige and pecuniary
rewards may pale in comparison to the threat of civil liability”].)
Indeed, elected officials, serving fixed terms of office at the
pleasure of their constituents, take on markedly different job
protections and vulnerabilities than rank-and-file employees.
Elected officials also have unique access to platforms from which
to speak and to have their voices amplified, and they can use
these platforms to identify wrongdoing in the first instance,
which might win favor from the public, or to disincentivize, fend
off, or highlight any retaliatory conduct.
Thus, the Legislature has sometimes deemed it
appropriate to exclude elected officials from workplace
protection laws. We have already mentioned two instances of
our state Legislature — the Legislative Employee
Whistleblower Protection Act and the Reporting by School
Employees of Improper Governmental Activities Act —
expressly excluding elected officials. (See ante, Part II.B, fn. 13.)
14
Defendants’ answering brief invokes the immunities from
liability that the Government Claims Act (Gov. Code § 810 et
seq.) provides to government officials. Defendants contend that
allowing elected officials to bring claims under section 1102.5
would be in tension with these immunity statutes. But the
question of these immunity statutes’ application, whether to the
city’s officials or the city itself, is not before us.
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BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
And although they may be viewed as implementing federal-state
comity concerns, a cadre of well-known federal employment
statutes exclude state and local elected officials. The Family
Medical Leave Act excludes elected officials of a state and its
subdivisions. (Nev. Dept. of Human Resources v. Hibbs (2003)
538 U.S. 721, 739; 29 U.S.C. §§ 2611(3), 203(e)(2)(C).) The Age
Discrimination in Employment Act excludes “elected officials
and appointed policymakers at the state and local levels.”
(Kimel v. Fla. Bd. of Regents (2000) 528 U.S. 62, 68; 29 U.S.C.
§ 630(f).) Title VII excludes state and local elected officials from
the employees it protects. (42 U.S.C. § 2000e.) So does the Fair
Labor Standards Act. (29 U.S.C. § 203(e)(2)(C).)
Principles articulated in cases addressing retaliation
claims under the First Amendment offer further insight into
why the Legislature might reasonably wish to treat elected
officials differently under section 1102.5. “ ‘[A]s a general
matter the First Amendment prohibits government officials
from subjecting an individual to retaliatory actions’ for engaging
in protected speech.” (Nieves v. Bartlett (2019) 587 U.S. 391,
398.) No statute comparable to section 1106 restricts who may
bring First Amendment retaliation claims and courts have not
precluded elected officials from bringing them. Such claims,
when brought by elected officials, might vindicate not only those
officials’ own First Amendment rights, but also the franchise of
their constituents. (Houston Community College System v.
Wilson (2022) 595 U.S. 468, 481.) However, actions that might
support an unelected individual’s suit for retaliation might not
support an elected official’s suit. (Id. at pp. 479–480.) “In this
country, we expect elected representatives to shoulder a degree
of criticism about their public service from their constituents
and their peers — and to continue exercising their free speech
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BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
rights when the criticism comes. . . . When individuals ‘consent
to be a candidate for a public office conferred by the election of
the people,’ they necessarily ‘pu[t] [their] character in issue, so
far as it may respect [their] fitness and qualifications for the
office.’ ” (Id. at p. 478.) The Ninth Circuit has “emphasized that
it is more difficult for elected officials to establish that they were
subjected to an adverse action that offends the First
Amendment because ‘more is fair in electoral politics than in
other contexts.’ ” (Boquist v. Courtney (9th Cir. 2022) 32 F.4th
764, 775–776.)
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.15 We need not
catalog the scope of other potential legal protections available to
elected officials, but we note, for instance, that challenges may
be possible to municipal actions that destroy an office
established by law. (De Merritt v. Weldon (1908) 154 Cal. 545,
549 [the “legislative body of the town may not effectually provide
that there shall be no compensation at all [for a statutorily
created elected office], or practically destroy the office by fixing
the compensation at so low a figure that no one will discharge
the duties thereof for the compensation fixed,” but denying an
elected official’s petition for writ of mandate on the facts of the
15
To be sure, legislators could have responded to the First
Amendment’s more limited protections for elected officials by
ensuring that section 1102.5 applied to them. But, as noted, the
legislative history of section 1106 is to the contrary, and, in fact,
indicates no consideration of these First Amendment issues.
29
BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
case]; Rossi v. Brown (1995) 9 Cal.4th 688, 693 [considering a
petition for writ of mandate to challenge city ordinances as
contrary to a city charter].)
Ultimately, even were section 1102.5 a superior vehicle for
pursuing retaliation claims, the differential treatment of elected
officials under whistleblower laws reflects a reasonable policy
choice. The merits of Brown’s contrary policy arguments are no
more than “debatable” and do not compel us to adopt her reading
of the statute. (Torres v. Automobile Club of So. California
(1997) 15 Cal.4th 771, 781–782.) Brown’s “argument is best
directed to the Legislature, which can study the various policy
and factual questions and decide what rules are best for society.
Our role here is to interpret the statute, not to establish policy.”
(Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132,
1140.)
D. Common Law Employment Test
All this aside, Brown argues the lack of a detailed
definition of the term “employee” in section 1106, including the
circumstance that the definition neither expressly includes nor
excludes elected officials, requires courts to “turn to [the]
common law test” of employment to define that statutory term.
Brown, citing Ayala v. Antelope Valley Newspapers, Inc. (2014)
59 Cal.4th 522, 531 (Ayala), 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
30
BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
employment does not affect the resolution of the statutory
interpretation question before us.
To be sure, the common law can inform our resolution of
uncertainties present in the ordinary meaning of a statute’s
words. (In re Newbern (1960) 53 Cal.2d 786, 795; see Harris v.
City of Santa Monica, supra, 56 Cal.4th at p. 218.) And, more
specifically, we have stated that when “ ‘ “a statute refer[s] to
employees without defining the term[,] courts have generally
applied the common law test of employment.” ’ ” (People v.
Superior Court (Sahlolbei) (2017) 3 Cal.5th 230, 235, quoting
Reynolds v. Bement (2005) 36 Cal.4th 1075, 1087; accord,
Metropolitan Water Dist. v. Superior Court (2004) 32 Cal.4th
491, 500 (Metropolitan Water).) We have described this rule as
“a specific application of the general rule that we do not presume
the Legislature intends to abrogate the common law unless it
‘ “ ‘ “clearly and unequivocally” ’ ” ’ says so.” (Sahlolbei, at p.
235.) The rule “applies when the common law test of
employment would have been appropriate in the same context
at common law.” (Ibid.)
“But as we explained in S. G. Borello & Sons, Inc. v.
Department of Industrial Relations (1989) 48 Cal.3d 341, the
common law test of employment is not always appropriate
beyond the tort context in which it was originally developed [to
establish an employer’s vicarious liability]. (Id. at pp. 350–351.)
Outside of tort, rather than ‘rigidly’ applying the common law
test, we look to the ‘ “history and fundamental purposes” ’ of the
statute at issue to determine whether the Legislature intended
the test to apply.” (Sahlolbei, supra, 3 Cal.5th at p. 235.)
Several previous decisions illustrate the point. In
Sahlolbei, we declined to adhere to a common law conception of
31
BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
the term “employee” because legislative history convinced us
that the undefined terms “employee” and “officer” found in a
conflicts of interest law (Gov. Code, § 1090) were both meant to
encompass so-called “outside advisors” even if those advisors
might have been classified under the common law test as
independent contractors and not employees. (Sahlolbei, supra,
3 Cal.5th at pp. 234, 236–237.) Similarly, in In re M.M., supra,
54 Cal.4th at pp. 541–545, we declined to impose common-law
derived restrictions on the term “public officer” in a penal
statute prohibiting resisting, delaying, or obstructing such
officers when indicia of legislative intent pointed to the term
having a broader scope.
In contrast, in Metropolitan Water, we addressed the
proper interpretation of the Public Employees’ Retirement Law
(PERL), which makes “employees” members of CalPERS, the
state’s retirement system, but excludes “ ‘[i]ndependent
contractors who are not employees.’ ” (Metropolitan Water, at p.
499.) We rejected a government agency’s request to read into
PERL an exclusion from membership for workers hired by third-
party labor suppliers, if they otherwise met the requirements to
be employees under the common law test. (Id. at pp. 496, 509.)
Given the lack of any definition of the term “employees” in PERL
and given the indicia of legislative intent favoring inclusion
within CalPERS of such workers, we held that the common law
test should determine whether a worker was an employee
eligible for CalPERS membership. (Id. at pp. 500, 502, 509.)
These cases demonstrate the adage that “canons of
construction are but tools, ‘guides to help courts determine
likely legislative intent.’ ” Sometimes these “tools do not reveal
a clear legislative intent.” (Burris v. Superior Court (2005) 34
Cal.4th 1012, 1017–1018.) As we cautioned in Sahlolbei, the
32
BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
“common law test of employment is not always appropriate
beyond the tort context in which it was originally developed.”
(Sahlolbei, supra, 3 Cal.5th at p. 235, citing S. G. Borello &
Sons, supra, 48 Cal.3d 341, at pp. 350–351.) Section 1102.5
“create[d] a right that did not exist at common law” (Campbell,
supra, 35 Cal.4th 311, 328), and whether it includes or excludes
elected officials for protection is an inquiry outside the context
of determining the vicarious tort liability of hirers. The indicia
of legislative intent discussed above, including history and
purpose, show that sections 1102.5 and 1106 exclude elected
officials such as Brown. We conclude the Legislature did not,
despite this, expect the fact-specific common law test of Ayala
that Brown cites to govern the fate of elected officials under the
statute — officials who plainly are not hired or fired in a fashion
similar to either employees or independent contractors typically
assessed under that test. We do not foreclose the possibility that
the common law might, in another context, offer guidance
regarding the employee status of elected officials, but we do
conclude the common law does not impact the outcome here.
III. DISPOSITION
We conclude that elected officials such as Brown, the City
of Inglewood’s treasurer, fall outside the definition of the term
“employee” in section 1106 and cannot assert the protections of
section 1102.5. Accordingly, we affirm the judgment of the
Court of Appeal.
33
BROWN v. CITY OF INGLEWOOD
Opinion of the Court by Jenkins, J.
JENKINS, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
EVANS, J.
34
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Brown v. City of Inglewood
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 92 Cal.App.5th 1256
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S280773
Date Filed: July 7, 2025
__________________________________________________________
Court: Superior
County: Los Angeles
Judges: Deirdre H. Hill
__________________________________________________________
Counsel:
Miller Barondess, Mira Hashmall, Nadia Sarkis, Colin H. Rolfs and
Eleanor Ruth for Defendants and Appellants.
Engstrom, Lipscomb & Lack, Walter J. Lack, Richard P. Kinnan and
Christopher A. Kanne for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Mira Hashmall
Miller Barondess, LLP
2121 Avenue of the Stars, Suite 2600
Los Angeles, CA 90067
(310) 552-7560
Richard P. Kinnan
Engstrom, Lipscomb & Lack
11601 Wilshire Boulevard, 14th Floor
Los Angeles, CA 90025
(310) 552-3800