BILL NUMBER: AB 1589 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JANUARY 5, 2010
INTRODUCED BY Committee on Accountability and Administrative Review
(De La Torre (Chair), Audra Strickland (Vice Chair), Arambula, Tom
Berryhill, Block, Caballero, Emmerson, Fuentes, Hagman, Huber, Jones,
Krekorian, Bonnie Lowenthal, and V. Manuel Perez)
SEPTEMBER 12, 2009
An act to amend Section 4905 of, to add Section 4639.3
add Section 4626.1 to, and to add Division 4.8
(commencing with Section 4910) to, the Welfare and Institutions Code,
relating to developmental services.
LEGISLATIVE COUNSEL'S DIGEST
AB 1589, as amended, Committee on Accountability and
Administrative Review. Regional centers: whistleblower protection:
related-party transactions.
Existing law, the Lanterman Developmental Disabilities Services
Act, requires the State Department of Developmental Services to
allocate funds to private nonprofit regional centers for the
provision of community services and support for persons with
developmental disabilities and their families, including, but not
limited to, residential placement, and sets forth the duties of the
regional centers, including, but not limited to, development of
individual program plans, the purchase of needed services to
implement the plan, and the monitoring of services. The act
prohibits an employee or agent of a facility or program from
subjecting a person with developmental disabilities to reprisal or
harassment that would prevent the person, his or her legally
authorized representative, or family member from reporting to the
protection and advocacy agency designated by the Governor information
pertaining to suspected abuse, neglect, or other violations of the
person's rights.
This bill would extend that prohibition to any person.
Existing law authorizes the department to adopt and enforce
conflict-of-interest regulations to ensure that members of the
governing board, program policy committees, and employees of regional
centers make decisions that are in the best interest of consumers
and the families of consumers.
This bill would require a regional center to disclose on its
Internet Web site specified information regarding
related-party related-person transactions, as
defined, on a quarterly basis, keep a log of that information for a
period of 3 years after termination of the regional center contract,
and provide that information to the public upon request.
Existing law, the California Whistleblower Protection Act, sets
forth the circumstances and procedures under which a state employee,
as defined, may report improper governmental activities, as defined,
or make a protected disclosure, as defined, to the State Auditor, and
prohibits retaliation or reprisal against a state employee for these
acts.
This bill would enact the Regional Center Whistleblower Protection
Act providing similar protections for regional center employees who
report improper regional center activities, as defined, or make a
protected disclosure, as defined, to the department or the
Legislature. It would require the department to investigate
complaints under these provisions, and would require
remedial actions to be taken by regional centers when appropriate.
The bill would establish a private cause of action to enforce
these provisions and , in connection, would require that
complaints filed with the employee's supervisor, manager, or regional
center director, be submitted unde r penalty of perjury,
thereby constituting a crime, and thus imposing a state-mandated
local program. The bill would make certain acts of reprisal a
crime, thereby imposing a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 4639.3 4626.1 is
added to the Welfare and Institutions Code, to read:
4639.3. 4626.1. (a) For purposes of
this section, the following terms shall have the following meanings:
(1) A "related person" means a person who was in any of the
following categories at a time during the specified period for which
disclosure is required pursuant to subdivision (b):
(A) A director or officer of the regional center.
(B) A nominee for director.
(C) An immediate family member of a director or officer of the
regional center or any nominee for director, which means a child,
stepchild, parent, stepparent, spouse, sibling, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law, or
sister-in-law of the director, officer or director nominee, and a
person, other than a tenant or employee, sharing the household of the
director, officer, or director nominee.
(2) A "transaction" includes, but is not limited to, a financial
transaction, arrangement or relationship, including an indebtedness
or guarantee of indebtedness, or a series of similar transactions,
arrangements, or relationships.
(3) A "related-person transaction" means a transaction in which
the regional center was or is to be a participant and in which a
related person had or will have a direct or indirect material
interest.
(b) Within 30 days following the last day of each of its fiscal
quarters, a regional center shall disclose on its Internet Web site
the following information, regarding each related-person transaction
that occurred during that quarter:
(1) The name of the related person and the basis on which the
person is a related person.
(2) The related person's interest in the transaction with the
regional center, including the related person's position or
relationship with, or ownership in, a firm, corporation, or other
entity that is a party to, or has an interest in, the transaction.
(3) The approximate dollar value of the amount involved in the
transaction.
(4) The approximate dollar value of the related person's interest
in the transaction, which shall be computed without regard to the
amount of profit or loss.
(5) In the case of indebtedness, disclosure of the amount involved
in the transaction shall include the largest aggregate amount of
principal outstanding during the period for which disclosure is
provided, the amount outstanding as of the latest practicable date,
the amount of principal paid during the quarter, the amount of
interest paid during the quarter, and the rate or amount of interest
payable on the indebtedness.
(6) Any other information regarding the transaction or the related
person in the context of the transaction that is material to the
public in light of the circumstances of the particular transaction.
(c) The department shall post a link to each regional center's
disclosure information pursuant to subdivision (b) on the department'
s Internet Web Site.
(d) The information set forth in subdivision (b) shall remain on
the regional center's Internet Web site for a 12-month period. The
regional center shall keep a log of the quarterly disclosures
required pursuant to subdivision (b) for a period of three years
after the regional center contract has terminated and shall make the
information available upon request to a member of the public.
(e) It is the intent of the Legislature that no additional state
funds be appropriated for the purposes of this section and that these
activities be funded through existing regional center administrative
resources.
(e) Regional centers shall implement this section through existing
resources.
SEC. 2. Section 4905 of the Welfare and
Institutions Code is amended to read:
4905. (a) No employee or agent of a facility, program, or service
shall subject a person to reprisal or harassment or directly or
indirectly take or threaten to take an action that would prevent the
person, his or her legally authorized representative, or family
member from reporting or otherwise bringing to the attention of the
protection and advocacy agency or an entity having oversight
jurisdiction over a regional center the facts or information relative
to suspected abuse, neglect, or other violations of any consumer's
rights.
(b) An attempt to involuntarily remove from a facility, program,
or service, or to deny privileges or rights without good cause to a
consumer by whom or for whom a complaint has been made to the
protection and advocacy agency or any entity having oversight
jurisdiction over a regional center, within 60 days after the date
the complaint is made or within 60 days after the conclusion of a
proceeding resulting from the complaint, shall raise a presumption
that the action was taken in retaliation for the filing of the
complaint.
SEC. 3. SEC. 2. Division 4.8
(commencing with Section 4910) is added to the Welfare and
Institutions Code, to read:
DIVISION 4.8. Regional Center Whistleblower Protection Act
4910. This division shall be known and may be cited as the
"Regional Center Whistleblower Protection Act."
4911. For purposes of this division:
(a) "Employee" means an individual employed with, holding office
in, or serving as a governing board member of, a regional center as
described by Article 1 (commencing with Section 4620) of Chapter 5 of
Division 4.5.
(b) "Illegal order" means a directive to violate or assist in
violating a federal, state, or local law, rule, or regulation or an
order to work or cause others to work in conditions outside of their
line of duty that would unreasonably threaten the health or safety of
employees or the public.
(c) "Improper regional center activity" means an activity by a
regional center or by an employee that is undertaken in the
performance of the employee's official duties, whether or not that
action is within the scope of his or her employment, and that (1) is
in violation of a state or federal law or regulation, including, but
not limited to, corruption, malfeasance, bribery, theft of government
property, fraudulent claims, fraud, coercion, conversion, malicious
prosecution, misuse of government property, or willful omission to
perform duty, or (2) is economically wasteful, or involves gross
misconduct, incompetency, or inefficiency. The intentional failure of
a regional center to comply with any provision of this division
shall constitute an improper regional center activity for purposes of
this division.
(d) "Person" means an individual, corporation, partnership,
limited liability company, trust, association, a state or local
government, or an agency or instrumentality of any of the foregoing.
(e) "Protected disclosure" means a good faith communication that
discloses or demonstrates an intention to disclose to the department
or the Legislature information that may evidence (1) an improper
regional center activity or (2) a condition that may significantly
threaten the health or safety of employees or the public if the
disclosure or intention to disclose was made for the purpose of
remedying that condition.
4912. (a) An employee may shall not
directly or indirectly use or attempt to use the official authority
or influence of the employee for the purpose of intimidating,
threatening, coercing, commanding, or attempting to intimidate,
threaten, coerce, or command any person for the purpose of
interfering with the rights conferred pursuant to this division.
(b) For the purpose of subdivision (a), "use the official
authority or influence" includes promising to confer, or conferring,
a benefit; effecting, or threatening to effect, a reprisal; or
taking, or directing others to take, or recommending, processing, or
approving, a personnel action, including, but not limited to,
appointment, promotion, transfer, assignment, performance evaluation,
suspension, or other disciplinary action.
(c) An employee who violates subdivision (a) may be liable in an
action for civil damages brought against the employee by the offended
party.
(d) Nothing in this section shall be construed to authorize an
individual to disclose information otherwise prohibited by or under
law.
4913. (a) Except as expressly set forth in this division, the
department shall administer this division, shall
investigate, division and shall investigate and
shall report report, as set forth in
this section, regarding improper regional center activities.
(b) Upon receiving specific information that improper regional
center activity has occurred, the department shall investigate and
may, if necessary, conduct a full investigative audit of the matter.
The identity of the person providing the information that initiated
the investigation shall not be disclosed without the written
permission of the person providing the information unless the
disclosure is to a law enforcement agency that is conducting a
criminal investigation.
(c) If the department determines that there is reasonable cause to
believe that improper regional center activity has occurred, the
department shall report the nature and details of the activity to the
regional center director.
(d) If, after investigating, the department finds that improper
regional center activities have occurred, the department shall send a
copy of the investigative report to the regional center. Within 30
days after receiving a copy of the department's investigative report,
the regional center shall either serve a notice of adverse
personnel action upon the employee or
employees who is are the subject
of the investigative report or set forth in writing its reasons for
not taking adverse personnel action.
The regional center shall submit a copy of the notice of
adverse personnel action to the department.
If the regional center does not take adverse action, it
shall submit its written reasons for not doing so to the department.
If the focus of the investigative report is a policy
or procedure, instead of an employee, the regional center shall,
within 30 days after receiving a copy of the department's
investigative report, submit a plan of corrective action to the
department.
(e) If appropriate, the department shall report this information
to the Attorney General, the policy committees of the Senate and
Assembly having jurisdiction over the subject involved, and to
another authority that the department determines appropriate.
(e) The department shall report the outcome of the investigation
to the policy committees of the Senate and Assembly having
jurisdiction over regional centers, to the Assembly Committee on
Accountability and Administrative Review, and to any other committee
or authority that the department determines appropriate. If the
department reasonably believes that the investigative report may
involve criminal actions, the department shall also report this
information to the Attorney General.
4915. 4914. The department may
request the assistance of a state department, agency, or employee in
conducting an investigative audit required by this division. No
information obtained from the department, agency, or employee as a
result of the department's request for assistance, nor any
information obtained thereafter as a result of further investigation,
shall be divulged or made known to a person without the prior
approval of the department.
4916. 4915. (a) In a case in which
the department submits a report of alleged improper regional center
activity to the regional center director, the regional center
director shall report to the department with respect to the action
taken by the individual regarding the activity, the first report
being transmitted within 30 days after the date of the department's
report and monthly thereafter until final action has been taken.
(b) Every investigation shall be kept confidential, except that
the department shall issue a report of an investigation that has been
substantiated, keeping confidential the identity of the individual
or individuals involved, and shall release the findings resulting
from an investigation conducted pursuant to this division that is
deemed necessary to serve the interests of the state. Information
provided to the department, or by the department, pursuant to this
division is exempt from the prohibitions of Sections 4514 and 5328.
(b) (1) Information provided to the department, or by the
department, pursuant to this division is exempt from the prohibitions
of Sections 4514 and 5328.
(2) Notwithstanding paragraph (1), every investigation shall be
kept confidential, except that the department shall issue a report of
an investigation that has been substantiated, keeping confidential
the identity of the individual or individuals who provided
information that initiated the investigation and the identity of the
consumer or consumers of regional center services that may have been
involved. The department shall only release findings resulting from
an investigation conducted pursuant to this division that are deemed
necessary to serve the interests of the state.
(c) Notwithstanding any other provisions of law,
including, but not limited , to ,
Section 4915 4914 , this division shall
not limit the authority conferred upon the Attorney General or a
department or agency of government to investigate any matter.
4917. 4916. (a) An employee
or applicant for regional center employment who
files a written complaint with his or her supervisor, manager, or the
regional center alleging actual or attempted acts of reprisal,
retaliation, threats, coercion, or similar improper acts prohibited
by this division, may also file a copy of the written complaint with
the department, together with a sworn statement that the contents of
the written complaint are true, or are believed by the affiant to be
true, under penalty of perjury. The complaint filed with the
department, shall be filed within 12 months of the most recent act of
reprisal complained about of .
(b) A person who intentionally engages in acts of reprisal,
retaliation, threats, coercion, or similar acts against an employee
or applicant for regional center employment for
having made a protected disclosure, is subject to a fine not to
exceed ten thousand dollars ($10,000) and imprisonment in the county
jail for a period not to exceed one year.
(c) In addition to all other penalties provided by law, a person
who intentionally engages in acts of reprisal, retaliation, threats,
coercion, or similar acts against an employee or applicant
for regional center employment for having made a protected
disclosure shall be liable in an action for damages brought against
him or her by the injured party. Punitive damages may be awarded by
the court where the acts of the offending party are proven to be
malicious. Where liability has been established, the injured party
shall also be entitled to reasonable attorney's fees as provided by
law. However, an action for damages shall not be available to the
injured party unless the injured party has first filed a complaint
with the department pursuant to subdivision (a), and the department
has issued, or failed to issue, findings.
(d) This section is not intended to prevent a regional center,
manager, or supervisor from taking, directing others to take,
recommending, or approving a personnel action or from taking or
failing to take a personnel action with respect to an employee
or applicant for regional center employment if the
regional center, manager, or supervisor reasonably believes the
action or inaction is justified on the basis of evidence separate and
apart from the fact that the person has made a protected disclosure.
(e) In a civil action or administrative proceeding, once it has
been demonstrated by a preponderance of evidence that an activity
protected by this division was a contributing factor in the alleged
retaliation against a former , current, or prospective
or current employee, the burden of proof shall
be on the supervisor, manager, or regional center to demonstrate by
clear and convincing evidence that the alleged action would have
occurred for legitimate, independent reasons even if the employee had
not engaged in protected disclosures or refused an illegal order. If
the supervisor, manager, or regional center fails to meet this
burden of proof in an adverse a personnel
action against the employee in an administrative review,
challenge, or adjudication in which retaliation has been demonstrated
to be a contributing factor, the employee shall have a complete
affirmative defense in the adverse personnel
action.
(f) Nothing in this division shall be deemed to diminish the
rights, privileges, or remedies of an employee under any other
federal or state law or under any employment contract or collective
bargaining agreement.
4918. 4917. By April 1, 2010, the
department shall prepare for employees a written explanation of the
provisions of this division and Division 4.7 (commencing with Section
4900). The explanation shall include, but need not be limited to,
all of the following information:
(a) Instructions on how to contact the department by mail,
telephone, e-mail, and fax.
(b) A general overview of improper regional center activities and
examples of three of the most common types of improper regional
center activities that may be reported to the department.
(c) An explanation of whistleblower protection available to
employees who report improper regional center activities to the
department.
(d) The requirement that the department protect the anonymity of a
person who reports improper regional center activity to the
department.
(e) The department's authority in connection with violations of
law discovered during an investigation of improper regional center
activities.
(f) A description of the penalties imposed under Section
4917 4916 .
4919. 4918. (a) The department
shall prepare for distribution to each regional center in an
electronic format a notice containing the information in the written
explanation prepared pursuant to Section 4918. By July 1,
2010, each regional center shall print and post this notice at its
office or offices in a location or locations where employee notices
are maintained. A regional center shall not edit the written text of
the notice but it may publish the notice in a manner it chooses, and
it may include its own introductory language in the notice, provided
that the language and the format selected do not alter the meaning of
the notice. 4917.
(b) By July 1, 2010, each regional center shall print and post the
notice distributed pursuant to subdivision (a) at its office or
offices in a location or locations where employee notices are
maintained. A regional center shall not edit the written text of the
notice, but may include its own introductory language in the notice,
provided that the language and the format selected do not alter the
meaning of the notice.
(b) On
(c) In addition to the
posted notice, on July 1, 2010, and annually thereafter, every
regional center shall send the information contained in the notice by
electronic mail e-mail to its
employees who have authorized access to electronic mail
e-mail from the regional center.
(c)
(d) The department shall post the information described
in Section 4918 4917 on its Internet
Web site.
SEC. 4. SEC. 3. No reimbursement is
required by this act pursuant to Section 6 of Article XIII B of the
California Constitution because the only costs that may be incurred
by a local agency or school district will be incurred because this
act creates a new crime or infraction, eliminates a crime or
infraction, or changes the penalty for a crime or infraction, within
the meaning of Section 17556 of the Government Code, or changes the
definition of a crime within the meaning of Section 6 of Article XIII
B of the California Constitution.