Pollak, Vida & Barer

In Brown v. City of Inglewood, published July 7, 2025, the California Supreme Court affirmed the decision of the lower court of appeal, which reversed the denial of an anti-SLAPP special motion to strike.  The plaintiff, the elected treasurer of the defendant city, wrote to the city and several of its officials, including the mayor and councilmembers, about her financial concerns, including an alleged overpayment to a city contractor.  The plaintiff alleged that the city and its officials mistreated her after her complaint.  She sued the city, the mayor, and the councilmembers for retaliation under Labor Code section 1102.5.  The defendants filed the special motion to strike on the ground that the statute protects employees, and elected officials are not employees.  The trial court denied the motion on the ground that the alleged retaliation did not arise from protected conduct.  The court of appeal held that the retaliation claim did arise from protected conduct.  It then concluded that the plaintiff was unlikely to prevail on her cause of action, because she was not an employee for purposes of section 1102.5.  The court noted that Labor Code section 1106, which defines "employees" for purposes of section 1102.5 and which does not expressly include elected officials in its definition.

The Supreme Court agreed that an elected official is not an "employee" for purposes of section 1102.5.  The court found the text of sections 1106 and 1102.5 inconclusive on whether the term "employee" as section 1106 defines it encompasses elected officials.  But the legislative history of section 1106 suggests a particular purpose of protecting rank-and-file employees from supervisors and managers, rather than protecting elected officials who report to the electorate rather than managers or supervisors in a conventional sense.  Comparison to the other whistleblowing statutes that informed section 1106's enactment does not support the conclusion that the statute was intended to embrace elected officials.  The interpretation of section 1106 as not applying to elected officials aligns with a reasonable public policy choice; and does not deprive elected officials of relief potentially available under other whistleblower protections or other laws, including the First Amendment.  The court ruled that the common law employment test was not applicable.