Brown v. City of Inglewood

Facts

Labor Code section 1102.5 sits within what the court, quoting the United States Supreme Court, described as a “powerful network” of “whistle-blower protection laws … available to those who seek to expose wrongdoing.” (Brown v. City of Inglewood, supra, 18 Cal.5th at p. 37, quoting Garcetti v. Ceballos (2006) 547 U.S. 410, 425.) Subdivision (b) of the statute commands that “[a]n employer … shall not retaliate against an employee” for disclosing information the employee reasonably believes evidences a violation of law. (§ 1102.5, subd. (b); see Brown, supra, at p. 37.) Since 1992, a companion provision has defined the protected class for public-sector purposes: section 1106 states that, for purposes of section 1102.5, “employee” “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; quoted at Brown, supra, at p. 37.)

Wanda M. Brown became the City of Inglewood’s elected treasurer in 1987. (Brown, supra, 18 Cal.5th at p. 38.) In late 2019 and early 2020, still holding that office, she wrote to the city and several of its officials — including the mayor and council members — 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, in violation of Penal Code section 424’s prohibition on misappropriating public funds. (Ibid.)

According to Brown, the city and its officials retaliated. She alleged the loss of her “seat” at city council meetings; exclusion from several city committees; reduction of her multimillion-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. (Brown, supra, 18 Cal.5th at p. 38.) The opinion noted that Inglewood’s charter makes the treasurer a city officer whose compensation the council fixes by ordinance. (Ibid., citing City of Inglewood Charter, art. IV, §§ 1, 2.) Perceiving these actions to be unlawfully motivated, Brown sued the city, its mayor, and its council members for retaliation under section 1102.5. (Brown, at p. 38.) Her complaint also pleaded defamation and intentional infliction of emotional distress, claims not at issue on review. (Id. at p. 38, fn. 2.)

Procedural history

Defendants responded with a special motion to strike under the anti-SLAPP statute, which “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.” (Brown, supra, 18 Cal.5th at p. 38, quoting Serova v. Sony Music Entertainment (2022) 13 Cal.5th 859, 867.) Their merits argument was categorical: section 1102.5 protects employees, and Brown — an elected official who could not be hired or fired from office — was not one. (Brown, at p. 38.) They quoted Brown’s own statement to a local newspaper: “I’m not an employee” but rather “elected by the people to be their eyes, ears, and voice.” (Id. at p. 39.) Brown countered that elected city officials are employees, pointing to her regular paychecks and annual W-2 forms showing typical employee deductions, and to the city’s power to control her job duties and salary. (Ibid.)

The trial court denied the motion as to the retaliation claim, reasoning that the claim arose from the alleged reprisals rather than from protected speech-related activity, and therefore never reached the employee question. (Brown, supra, 18 Cal.5th at p. 39, citing Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1004.) It struck the defamation claim entirely and part of the emotional-distress claim under Civil Code section 47. (Brown, at p. 39, fn. 4.)

The Court of Appeal reversed the denial as to the individual defendants. (Brown v. City of Inglewood (2023) 92 Cal.App.5th 1256; see Brown, supra, 18 Cal.5th at p. 39.) It first held the retaliation claim against those defendants arose from protected activity (Brown, at pp. 39–40, citing City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 422, 426), then held Brown had not shown a probability of prevailing because, as an elected official, she was not an employee who could invoke section 1102.5. The appellate court found section 1106’s language “clear and unambiguous” — contrasting it with Labor Code section 3351’s express inclusion of elected officers for workers’ compensation — and on that basis declined to consult the common law. (Brown, supra, at p. 40, citing Brown, supra, 92 Cal.App.5th at pp. 1264–1265.)

The Supreme Court granted review and limited the issue to the coverage question. It affirmed. (Brown, supra, 18 Cal.5th at pp. 40, 57.)

Issue

As limited by the order granting review: “Are elected officials employees for purposes of whistleblower protection under Labor Code section 1102.5, subdivision (b)?” (Brown, supra, 18 Cal.5th at p. 40.) The question is one of statutory interpretation reviewed de novo. (Ibid., citing People v. Curiel (2023) 15 Cal.5th 433, 461.)

Holding

Reasoning

The text is a starting point, but it does not decide the case. The court began with the language of sections 1102.5 and 1106. (Brown, supra, 18 Cal.5th at pp. 40–41.) Section 1106 defines “employee” to include “any individual employed by” the state, counties, cities, and other public entities — but “does not state whether an ‘employee’ or an ‘individual employed’ by a government entity includes an elected official.” (Id. at p. 41.) Nor does the bare word “employee” answer the question: Black’s Law Dictionary, in both its 1990 and 1951 editions, cautions that the term “must be distinguished from ‘independent contractor,’ ‘officer,’ ‘vice-principal,’ ‘agent,’ etc.,” and that it “is often specially defined by statutes,” so that its meaning “will depend upon facts and circumstances.” (Id. at pp. 41–42, quoting Black’s Law Dict. (6th ed. 1990) p. 525.) California’s codes prove the point: some statutes expressly sweep elected officials into “employee” — most prominently Labor Code section 3351, subdivision (b), which defines the workers’ compensation “employee” to include “[a]ll elected and appointed paid public officers” — while others expressly exclude them, such as Government Code section 54957, subdivision (b)(4). (Brown, at pp. 42–43.) That variation “shows that section 1106’s mere use of the term ‘employee’ or ‘employed’ does not conclusively resolve the question before us.” (Id. at p. 43.) Notably, the court declined to give the Court of Appeal’s section 3351 comparison any special weight: nothing indicates the Legislature saw the two sections as related, so the comparison “has no unique or especially strong probative value.” (Id. at p. 42, fn. 6, citing Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 218.)

“Not limited to” is not limitless. Brown leaned on section 1106’s phrase “includes, but is not limited to.” The court answered with the ejusdem generis canon: while “‘“[I]ncluding, but not limited to” is a phrase of enlargement’” it is “not necessarily a phrase without limits,” and the specific examples listed may restrict the defined term’s meaning. (Brown, supra, 18 Cal.5th at p. 43, quoting People v. Giordano (2007) 42 Cal.4th 644, 660, and citing People v. Arias (2008) 45 Cal.4th 169, 180–182.) Because every example in section 1106 “recursively invokes the earlier phrase ‘employed by,’” the enlargement phrase “does not indicate an intent to reach beyond employees.” (Brown, at pp. 43–44.) The pivot sentence of the opinion follows: “Because the statutory text is inconclusive, we consider additional context and history.” (Id. at p. 44.)

Legislative history: a statute about rank-and-file workers, born of a rank-and-file grievance. Section 1106’s legislative history “suggests a particular purpose of protecting rank-and-file employees from supervisors and managers, not protecting elected officials.” (Brown, supra, 18 Cal.5th at p. 44.) Committee analyses recorded that “[p]roponents believe[d] that public employees should be encouraged to report illegal activities by supervisors and managers without fear of retaliation.” (Ibid.) The impetus was concrete: “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.” (Id. at pp. 44–45.) Elected officials stand on different footing — “[t]hey report to the electorate rather than managers or supervisors in a conventional sense” (id. at p. 45, citing Essick v. County of Sonoma (2022) 81 Cal.App.5th 941, 951), and when they face retaliation it is likely to come, as alleged here, from elected colleagues, possibly through direct legislative action. The history reflects no consideration of subjecting such intramural political disputes to judicial scrutiny. (Brown, at p. 45, citing Tenney v. Brandhove (1951) 341 U.S. 367, 378.)

Statutory context: the whistleblower statutes the Legislature had in mind spoke of “officers”; section 1106 does not. Reading section 1106 in pari materia with the whistleblower scheme it joined (Brown, supra, 18 Cal.5th at pp. 45–46, citing Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 87, and Kaanaana v. Barrett Business Services, Inc. (2021) 11 Cal.5th 158, 175), the court traced the 1992 enactment. Section 1102.5, enacted in 1984, was understood to reach only private-sector employees; section 1106 responded to perceived gaps in two public-sector statutes — the Reporting of Improper Government Activities Act (state employees) and the Local Government Disclosure of Information Act (local employees) — by extending section 1102.5 to public workers. (Brown, at pp. 46–47, citing Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 330–331, and Shoemaker v. Myers (1990) 52 Cal.3d 1, 20, fn. 11.) As Campbell put it, “[t]he addition of section 1106 … was intended to extend the rights available to private employees to include public employees, and nothing more.” (Brown, at p. 47, quoting Campbell, supra, 35 Cal.4th at p. 331.)

The drafting contrast was decisive. The state-worker act defined its protected “employee” as “any individual appointed by the Governor or employed or holding office in a state department or agency” (Gov. Code, former § 10542) — expressly distinguishing employees from appointees and officeholders. (Brown, supra, 18 Cal.5th at pp. 47–48.) The local-government act distinguished in its text between officers and employees, singling out appointed officials. (Id. at pp. 48–49.) And within section 1106’s own chapter, section 1104 has since 1937 differentiated “managers, officers, agents, and employees.” (Id. at p. 49.) The phrase “holding office,” the court observed, has long been used — by the court and by the Legislature — to include elected officials. (Id. at pp. 49–50, citing Barrett v. Hite (1964) 61 Cal.2d 103, 105.) Against that backdrop, “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 independence”’ that might distinguish officers from employees.” (Brown, at p. 50, quoting Patton v. Board of Health (1899) 127 Cal. 388, 395.) Two illustrations sealed the inference: Wade v. Board of Administration (1945) 67 Cal.App.2d 745, holding a charter’s grant of retirement benefits to “employees” excluded elected officials, and the Legislature’s handling of Government Code section 54957, where Attorney General opinions construing “employee” to exclude elective officers were codified in 1980. (Brown, at pp. 50–51.) The Legislature is presumed aware of such statutes, decisions, and Attorney General constructions: “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.” It did not. (Id. at p. 51.)

Public policy: exclusion is a reasonable legislative choice, not an oversight. Acknowledging that protecting elected whistleblowers is “one reasonable policy approach” — section 1102.5 “reflects the broad public policy interest in encouraging workplace whistle-blowers to report unlawful acts without fearing retaliation” (Brown, supra, 18 Cal.5th at p. 53, quoting Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 77) — the court found the contrary choice reasonable as well. Retaliation against elected officials will typically come from elected colleagues answerable at the ballot box, and the Legislature “might reasonably wish to channel such intramural disputes to the electoral process rather than the courtroom.” (Brown, at p. 53, citing Tenney v. Brandhove, supra, 341 U.S. at p. 378 [“Courts are not the place for such controversies”].) Elected officials serve fixed terms at their constituents’ pleasure, carry “markedly different job protections and vulnerabilities than rank-and-file employees,” and command platforms from which to expose wrongdoing and fend off reprisals. (Brown, at pp. 53–54.) The Legislature has elsewhere excluded elected officials from whistleblower and workplace statutes, and a cadre of federal employment statutes — the FMLA, the ADEA, Title VII, and the FLSA — likewise exclude state and local elected officials. (Id. at p. 54.) First Amendment retaliation doctrine supplied a final analogy: elected officials may sue, but “actions that might support an unelected individual’s suit for retaliation might not support an elected official’s suit,” because “more is fair in electoral politics than in other contexts.” (Id. at p. 54, citing Houston Community College System v. Wilson (2022) 595 U.S. 468, 479–480, and quoting Boquist v. Courtney (9th Cir. 2022) 32 F.4th 764, 775–776.) Exclusion from section 1102.5, the court emphasized, “would not deprive such officials of relief potentially available under other whistleblower protections or other laws, including, as applicable, the First Amendment.” (Brown, at p. 54.) Brown’s contrary policy arguments were “no more than ‘debatable’” and “best directed to the Legislature”: “Our role here is to interpret the statute, not to establish policy.” (Id. at p. 55, quoting Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132, 1140.)

The common law control test does not govern statutory coverage here. Brown’s fallback invoked the rule that when “‘“a statute refer[s] to employees without defining the term[,] courts have generally applied the common law test of employment.”’” (Brown, supra, 18 Cal.5th at pp. 55–56, quoting People v. Superior Court (Sahlolbei) (2017) 3 Cal.5th 230, 235.) Under Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 531, she argued, the city’s control over her duties and salary — and indicia like her W-2s — made her an employee. (Brown, at p. 55.) The court disagreed. The common law test “is not always appropriate beyond the tort context in which it was originally developed,” and outside tort the court looks to the statute’s “‘“history and fundamental purposes”’” to determine whether the Legislature intended the test to apply. (Id. at p. 56, quoting Sahlolbei, supra, 3 Cal.5th at p. 235, citing S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350–351.) Its precedents ran both ways — Sahlolbei and In re M.M. (2012) 54 Cal.4th 530 declined common law limits where legislative intent pointed broader; Metropolitan Water Dist. v. Superior Court (2004) 32 Cal.4th 491 applied the common law test where intent favored inclusion — proving that “canons of construction are but tools.” (Brown, at pp. 56–57.) Here, section 1102.5 “‘create[d] a right that did not exist at common law’” (id. at p. 57, quoting Campbell, supra, 35 Cal.4th at p. 328), the coverage question lies outside the vicarious-liability context, and elected officials “plainly are not hired or fired in a fashion similar to either employees or independent contractors typically assessed under that test.” (Brown, at p. 57.) The fact-specific Ayala inquiry therefore does not govern — though the court did “not foreclose the possibility that the common law might, in another context, offer guidance regarding the employee status of elected officials.” (Ibid.)

Significance

Brown is the Supreme Court’s first square holding on who counts as an “employee” under sections 1102.5 and 1106, and it teaches a method as much as a result. The court refused to treat section 1106’s open-ended “includes, but is not limited to” language as self-executing breadth, and it equally refused the Court of Appeal’s shortcut of declaring the text “clear and unambiguous” from a single cross-statute comparison. (Compare Brown v. City of Inglewood, supra, 92 Cal.App.5th at p. 1265 with Brown, supra, 18 Cal.5th at pp. 42, fn. 6, 44.) The affirmance thus rests on a different, and more durable, foundation: “employee” in California employment legislation is a statute-specific term whose scope is fixed by each enactment’s history and purpose. The same word simultaneously includes elected officers for workers’ compensation (Lab. Code, § 3351, subd. (b)) and excludes them for whistleblower retaliation. Practitioners should expect Brown’s context-and-history template — and its cautious use of the common law test outside tort, drawn from Sahlolbei and Borello — to govern the next coverage dispute under any Labor Code protection.

Within the whistleblower canon, Brown trims the edges of an otherwise expansive doctrinal arc. Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703 lowered the plaintiff’s causation burden; People ex rel. Garcia-Brower v. Kolla’s, Inc. (2023) 14 Cal.5th 719 read “disclose” generously; Brown now confirms that these protections belong to workers in an employment relationship, not to officials who answer to the electorate. For municipal-government litigation, the decision channels intra-council score-settling away from section 1102.5 damages actions and toward political remedies, First Amendment claims, and writ challenges to actions that would effectively destroy an office. (Brown, supra, 18 Cal.5th at pp. 54–55, citing De Merritt v. Weldon (1908) 154 Cal. 545, 549.) The unanimity of the opinion, and its reliance on the Legislature’s presumed awareness of officer-inclusive drafting models, also make legislative amendment — not further litigation — the realistic path to coverage for elected officials.

Key quotes

“Because the statutory text is inconclusive, we consider additional context and history.” (Brown, supra, 18 Cal.5th at p. 44.)

“[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 independence”’ that might distinguish officers from employees.” (Brown, supra, 18 Cal.5th at p. 50.)

“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.” (Brown, supra, 18 Cal.5th at p. 57.)

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Practice pointer

Open questions

The court carefully bounded its holding. First, it had “no occasion to address other aspects of the employee-officer distinction” (Brown, supra, 18 Cal.5th at p. 52) — leaving open whether appointed officers, board members, or other non-elected officeholders are section 1106 “employees.” Second, it did “not foreclose the possibility that the common law might, in another context, offer guidance regarding the employee status of elected officials” (id. at p. 57), preserving the Sahlolbei/Metropolitan Water framework for the next undefined-term dispute. Third, it expressly declined to decide whether Government Claims Act immunities would independently bar such suits, an issue defendants raised but the court found “not before us.” (Id. at p. 53, fn. 14.) Fourth, the court noted without deciding that municipal actions that “practically destroy” an office established by law may be challengeable by writ (id. at p. 55, citing De Merritt v. Weldon, supra, 154 Cal. at p. 549), and it did “not catalog the scope of other potential legal protections available to elected officials” (Brown, at pp. 54–55). Finally, because the decision construes sections 1102.5 and 1106, it says nothing about elected officials’ standing under differently worded schemes — each statute’s history and purpose must be run through Brown’s method afresh.