BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1749
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          Date of Hearing:  April 20, 2010

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
            AB 1749 (Lowenthal and Strickland) - As Amended: April 5, 2010
                                           
          SUBJECT  :  WHISTLEBLOWER PROTECTION: JUDICIAL BRANCH EMPLOYEES

           KEY ISSUE  :  SHOULD JUDICIAL BRANCH EMPLOYEES ENJOY GREATER  
          PROTECTIONS AGAINST WHISTLEBLOWING?

           FISCAL EFFECT  :   As currently in print this bill is keyed  
          fiscal.

                                      SYNOPSIS
          
          This bill is sponsored by the authors in response to testimony  
          they heard last fall at a legislative oversight hearing  
          regarding the judicial branch.  It would extend to judicial  
          branch employees certain additional rights under the  
          Whistleblower Protection Act to complain about improper  
          governmental activities and protections against retaliation for  
          making those complaints and other protected disclosures.  The  
          bill is supported by labor organizations and the Judicial  
          Council.  No opposition has been received.

           SUMMARY  :  Applies certain whistleblowing protections to the  
          judicial branch.  Specifically,  this bill  :  

          1)Includes employees and applicants for employment by the  
            Supreme Court, a court of appeal, a superior court, or the  
            Administrative Office of the Courts within the definition of  
            "employee" for the purposes of the California Whistleblower  
            Protection Act, except as specified. 

          2)Authorizes an employee or applicant for employment with those  
            judiciary entities who files a written complaint alleging  
            actual or attempted acts of reprisal, retaliation, or similar  
            prohibited acts for having made a protected disclosure, to  
            also file a copy of the written complaint with the State  
            Personnel Board, together with a sworn statement that the  
            written complaint is true, under penalty of perjury. 

          3)Requires the State Personnel Board to investigate any claim  
            filed and make a recommendation regarding the alleged  








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            retaliation.

          4)Provides that any person, other than a judge or justice, who  
            intentionally engages in acts of reprisal, retaliation, or  
            similar prohibited acts against an employee or applicant for  
            employment with those judiciary entities for having made a  
            protected disclosure, is subject to punishment for a  
            misdemeanor, and shall be liable in an action for civil  
            damages brought by the injured party.  The bill also would  
            prohibit an employee of those judiciary entities from using  
            his or her official authority or influence in violation of  
            these provisions, and would make that employee liable in an  
            action for civil damages brought by the injured party.



           EXISTING LAW  :

          1)Pursuant to the Whistleblower Protection Act (WPA), protects  
            state employees from retaliation by their employer for  
            reporting fraud, waste, abuse of authority, violation of law,  
            or activities that create a threat to public health or safety,  
            or the health or safety of state employees.  (Gov. Code Sec.  
            8547 et seq.)  

          2)Makes a person who intentionally engages in acts of reprisal  
            or retaliation in violation of the WPA subject to a fine of up  
            to $10,000 and up to a year in county jail, and if that person  
            is a civil service employee, subjects that person to  
            discipline by adverse action.  A person injured by such acts  
            may bring an action for damages only after filing a complaint  
            with the SPB and the SPB issued, or failed to issue, findings  
            of its hearings or investigation.  (Gov. Code Sec. 8547.8.)

          3)Provides a process by which a state employee may file an  
            optional written complaint alleging adverse employment actions  
            such as retaliation, reprisal threats, or coercion, with a  
            supervisor or manager and with the SPB.  Existing law requires  
            the SPB to initiate an investigation or a proceeding within 10  
            working days of submission of a written complaint, and to  
            complete findings of the investigation or hearing within 60  
            working days thereafter.  (Gov. Code Sec. 19683.)

          4)Provides that no public or private employer may make, adopt,  
            or enforce any rule, regulation, or policy preventing an  








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            employee from disclosing information to a government or law  
            enforcement agency, where the employee has reasonable cause to  
            believe that the information discloses a violation of state or  
            federal statute, or a violation or noncompliance with a state  
            or federal rule or regulation.  (Labor Code section 1102.5.)

          5)Likewise prohibits public and private employers from  
            retaliating against an employee for: disclosing information to  
            a government or law enforcement agency, where the employee has  
            reasonable cause to believe that the information discloses a  
            violation of state or federal statute, or a violation or  
            noncompliance with a state or federal rule or regulation; (b)  
            refusing to participate in an activity that would result in a  
            violation of state or federal statute, or a violation or  
            noncompliance with a state or federal rule or regulation; or  
            (c) having exercised his or her rights to do so in any former  
            employment.  (Labor Code section 1102.5.)

          6)Provides that any employer who violates this chapter is guilty  
            of a misdemeanor punishable, in the case of an individual, by  
            imprisonment in the county jail not to exceed one year or a  
            fine not to exceed $1,000 or both and, in the case of a  
            corporation, by a fine not to exceed $5,000, and provides that  
            in all prosecutions under this chapter, the employer is  
            responsible for the acts of his managers, officers, agents,  
            and employees.  (Labor Code sections 1103-04.)

           COMMENTS  :  This bill is sponsored by the joint authors, who  
          explain their rationale as follows:

               AB 1749 gives Judicial Branch employees the same level of  
               protection against retaliation for reporting wrongdoing as  
               is currently afforded to other employees of the state  
               bureaucracy.  

               The approximately 22,000 employees of Judicial Branch of  
               California government are outside the scope of the existing  
               Whistleblower Protection Act.  AB 1749 would expand the Act  
               to include these employees, thereby encouraging them to  
               alert the public when its resources are being misused.

               All working Californians enjoy some level of protection  
               from retaliation if they report a violation of law by their  
               employer.  But that blanket protection granted in the Labor  
               Code does not cover those who report instances of what is  








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               generically called waste, fraud or abuse, in the  
               non-criminal sense.  
               
               Because it is in the interest of all Californians to  
               uncover wasteful or inappropriate activities of public  
               officials, the state's Whistleblower Protection Act  
               provides very broad protection so that any employee may  
               feel safe when calling attention to actions they believe  
               are not for the public good. 

               The important functions of the Judicial Branch will cost  
               Californians about $3.7 billion this year.  In recent  
               years, the branch, like all areas of government, has  
               sustained significant budget reductions.  These reductions  
               have in some cases reduced the public's access to the court  
               system.  There are significant disagreements over the  
               setting of budgetary priorities, and in some cases branch  
               employees have suggested that administrators have not used  
               resources in the most appropriate manner.  Some employees  
               have suggested making any kind of complaint about the  
               allocation of resources or other branch administrative  
               activity runs the risk of reprisal and retaliation.  There  
               are pending court cases around exactly such allegations.   
               AB 1749 makes no judgment on those allegations, but clearly  
               articulates the belief that the cause of transparency in  
               government is best served when government employees feel  
               most free to call attention to actions they believe are not  
               in the public interest.

          The bill has earned support from the SEIU, which describes it as  
          one proposed improvement that will help bring the judiciary in  
          line with other tax payer funded entities with respect to  
          oversight and accountability.  SEIU states, "When employees are  
          free to report suspected law violations regarding government  
          operations or misuse of public funds and be free of retaliation,  
          it only serves the public's best interest and helps to ensure  
          that our tax dollars are being used wisely and prudently."  

          The bill is likewise supported by the Judicial Council "because  
          it will promote transparency and accountability within the  
          branch in a manner that appropriately acknowledges the integrity  
          and independence of the judicial branch."  The Judicial Council  
          notes, "The courts and the AOC are entrusted with a significant  
          share of state taxpayer dollars, and it is appropriate that  
          judicial branch entities are held accountable for their  








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          expenditure of those funds in a manner analogous to the other  
          branches.  AB 1749 will promote that result and ensure that  
          there is no appearance that judicial branch expenditures are  
          lacking in accountability or transparency."  The Judicial  
          Council also notes, "By creating a unique procedure for  
          consideration of retaliation complaints, which vests final  
          decision-making authority for complaints filed with the employer  
          and the State Personnel Board within the judicial branch, AB  
          1749 clearly acknowledges that an independent co-equal branch of  
          government must have independent authority to oversee its  
          employees."
           
          Existing Whistleblower Protections Are Believed To Be  
          Inadequate.   The authors note, and the Judicial Council  
          acknowledges, that employees of the judicial branch are  
          protected by current provisions of the Labor Code prohibiting  
          both public and private employers from making, adopting or  
          enforcing any rule, regulation, or policy preventing an employee  
          from disclosing information to a government or law enforcement  
          agency, where the employee has reasonable cause to believe that  
          the information discloses a violation of state or federal  
          statute, or a violation or noncompliance with a state or federal  
          rule or regulation, and prohibiting retaliation against an  
          employee for: disclosing information to a government or law  
          enforcement agency, where the employee has reasonable cause to  
          believe that the information discloses a violation of state or  
          federal statute, or a violation or noncompliance with a state or  
          federal rule or regulation; refusing to participate in an  
          activity that would result in a violation of state or federal  
          statute, or a violation or noncompliance with a state or federal  
          rule or regulation; or having exercised his or her rights to do  
          so in any former employment. 

          Surprisingly to some, however, judicial branch employees are not  
          believed to be covered by the broader protections of the WPA  
          that extend to reports of such improper governmental activity as  
          coercion, conversion, malicious prosecution, misuse of  
          government property, or willful omission to perform duty,  
          activity that is economically wasteful, or involves gross  
          misconduct, incompetency, or inefficiency, and illegal orders 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.  According to news accounts, in one pending case an AOC  








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          employee has asserted that WPA does apply to his employment.   
          However, this appears to be thus far a novel and thus far  
          unsupported interpretation.

           This Bill Would Protect Reports of Wrongdoing Within The  
          Judicial Branch In Many, But Not All, The Ways In Which The WPA  
          Covers Other Agencies Of The State  .  The bill redefines the term  
          "employee" in the WPA to include persons employed by the Supreme  
          Court, a court of appeal, a superior court, or the  
          Administrative Office of the Courts for certain purposes of the  
          WPA.  However, there are some notable differences in the  
          substantive protections it offers, although some of these may  
          well be technical drafting issues rather than intentional policy  
          choices.  
           
          Excludes Judges and Justices.  Perhaps most significantly, the  
          bill excludes sitting judges and justices from all of the  
          criminal and most of the civil liability that attaches to other  
          judicial branch employees under the bill, and to all executive  
          branch employees and appointees under existing law.  This may be  
          justified because justices and judges are subject to the broad  
          authority and disciplinary power of the Commission on Judicial  
          Performance (CJP), and the bill buttresses that safeguard by  
          specifically protecting complaints made to the CJP, not just by  
          judicial branch employees but by all persons covered under the  
          WPA.  However, it may be noted that this exemption covers more  
          than the adjudicative functions of judicial officers, which are  
          traditionally immune from liability.  The exemption also covers  
          the administrative functions of judges with respect to personnel  
          matters, which are not generally not immune from liability, such  
          as under anti-discrimination and anti-retaliation laws.

          Prohibited Interference Appears To Be More Limited.  The bill  
          may also afford judicial branch employees rights that are  
          somewhat narrower than the rights other employees enjoy under  
          the WPA in that section 8547.3 of the WPA prohibits all  
          interference with any of the rights conferred pursuant to the  
          WPA, while proposed section 8547.13(i) of the bill appears to  
          prohibit judicial branch employees from interfering with the  
          "right of that person to disclose to an agency official,  
          designated for that purpose by the agency, or the State Auditor  
          matters within the scope of this article."  Thus, the bill  
          appears to exclude interference with the rights afforded to the  
          Bureau of State Audits and the State Personnel Board (SPB) with  
          respect to investigation of complaints and recommended  








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          corrections under sections 8547.4, 8547.5, 8547.6 and 8547.7.   
          The proper construction of the bill is unclear, however, because  
          both section 8547.3 and 8547.13(i) appear to apply to judicial  
          branch employees. 

          Restrictions On Receipt of Complaints.  In addition, the bill  
          appears to restrict the persons to whom judicial branch  
          employees may file their internal complaints more rigidly than  
          for other state employees.  The bill specifies that internal  
          complaints may be filed only with the complaining employee's  
          supervisor, manager of "other agency officer designated for that  
          purpose by the agency."  The WPA by comparison expressly  
          authorizes complaints to be received by supervisors, managers  
          and "the appointing authority."  To the extent that complainants  
          may wish to avoid lodging their charges directly with their  
          supervisor or manager, as may frequently be the case, the bill  
          requires them to know who if anyone else in their agency has  
          been authorized to receive their complaint.

          Restrictions on SPB's Authority To Order Relief For Violations.   
          With respect to investigations by the SPB, the bill affords the  
          SPB the authority only to make recommendations to court agencies  
          regarding complaints it investigates, and to make such  
          recommendations only regarding whether retaliation resulted in  
          an adverse action regarding the employee and, if so, what steps  
          should be taken to remedy the situation.  This differs from  
          existing law in two ways.  First, the role of the SPB regarding  
          other employees under the WPA includes the authority to order  
          relief, including discipline against the state employee that  
          violated the law.  (Government Code section 19683.)  Restricting  
          the authority of the SPB to simply make recommendations is  
          understood to be intentional on the part of the authors because  
          it is important to the Judicial Council, which contends that it  
          is inappropriate to grant an executive branch agency the power  
          to impose decisions regarding judicial branch employees -  
          although it might be noted that other executive branch agencies  
          currently have such authority under existing workplace laws,  
          including existing anti-retaliation rules enforced by the Labor  
          Agency and the Fair Employment and Housing Commission.   
          Secondly, this provision differs in that the SPB has the  
          authority to make recommendations only "regarding whether  
          retaliation resulted in an adverse action."  The term "adverse  
          action" has a specific definition in state employment law; it  
          does not include every punitive act.  Under the WPA, by  
          contrast, the SPB can find that improper retaliation occurred  








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          regarding other covered employees even if the retaliation does  
          not take the form of "adverse action."  It is not clear whether  
          there is a policy rationale for this limitation regarding  
          judicial branch employees.

          No Required Time Frames For SPB.  In addition, the bill appears  
          to lack the specified time frames under which the SPB is  
          currently required to act in response to complaints it receives  
          from other state agency employees under the WPA.  (Compare  
          Government Code section 19683 for state agency employees with  
          section 8547.13(c) regarding judicial branch employees.)

          Discretionary Discipline For Intentional Violations.  Other  
          employees covered by the WPA face mandatory discipline by the  
          SPB for intentional acts of retaliation, in addition to being  
          "subject to" certain potential criminal penalties.  (Section  
          8547.8(b).)  Under this bill, however, judicial branch employees  
          who commit intentional violations are said to be "subject to  
          discipline," a term that suggests the imposition of discipline  
          is discretionary, like criminal penalties.  (See proposed  
          section 8547.13(d).)

           This Bill Would Extend Not Only Substantive Rights But An  
          Administrative Processes For Allegations Of Impropriety  
          Regarding The Judicial Branch  .  As discussed above, the WPA  
          currently provides an SPB complaint process for retaliation  
          against employees and applicants who make a "protected  
          disclosure" and for any person who uses or attempts to use his  
          or her official authority or influence 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 by the WPA.   
          Under this bill, the administrative process of the SPB would be  
          applied to the judicial branch, albeit with the limitations  
          noted above.  Because the authors are naturally concerned about  
          the potential fiscal impact of extending the investigative  
          function of the SPB to the judicial branch, they may wish to  
          consider whether the costs of this administrative process are  
          worth the benefits.  Information obtained by the Committee  
          indicates that the SPB process is not especially robust or  
          valuable.  From 2003 to 2008, 55 complaints per year were filed  
          on average, but 17 of those were rejected.  Of the 38 complaints  
          per year that were accepted, 13 were denied, 19 were still  
          pending, 2 were withdrawn and 3 were resolved by stipulated  
          agreement.  This record may suggest that administrative outcomes  








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          are not sufficiently desirable to warrant the additional cost,  
          keeping in mind that SPB findings and recommendations are only  
          advisory under the bill, and that the protections established by  
          the bill may be independently enforced by a private right of  
          action.

           Suggested Technical Amendments  .  As the bill moves forward the  
          authors may wish to consider some drafting issues, including:  
          (1) the use of the term "chapter" in section 8547.13(c) where it  
          appears the term "section" may be intended; and (2) clarifying  
          the exemption with respect to section 8547.4 which is said to  
          apply to court employees only to some extent - perhaps by  
          subdividing that section and explicitly indicating which of the  
          subdivisions applies to the judicial branch.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          AFSCME
          California Employment Lawyers Association
          California Labor Federation
          California Official Court Reporters Association
          California Protective Parents Association
          Center for Judicial Excellence
          Glendale City Employees Association
          Laborer's Int't Locals 729 and 777
          Judicial Council
          Orange County Employees Association
          Organization of SMUD Employees 
          Prof. & Tech Engineers, Local 21
          San Bernardino Public Employees Association 
          San Diego Court Employees Association
          San Luis Obispo County Employees Association 
          Santa Rosa City Employees Association 
          SEIU


           Opposition 
           
          None on file
           
          Analysis Prepared by  :  Kevin G. Baker / JUD. / (916) 319-2334