BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 1749 (Lowenthal and Strickland)
As Amended April 27, 2010
Hearing Date: June 29, 2010
Fiscal: Yes
Urgency: No
KB:jd
SUBJECT
California Whistleblower Protection Act: Administrative Office
of the Courts
DESCRIPTION
This bill would expand existing whistleblower protections under
the California Whistleblower Protection Act (CWPA) to include
employees of the judicial branch.
BACKGROUND
The CWPA prohibits state employees from using or attempting to
use their official authority or influence to interfere with the
rights of an employee to make a good faith communication that
discloses information which may evidence an improper
governmental activity, or any condition that may significantly
threaten the health or safety of employees or the public. The
CWPA also provides a process by which a state employee who has
made a protected disclosure may file a written complaint
alleging adverse employment actions such as retaliation,
reprisal threats, or coercion, with a supervisor or manager and
with the State Personnel Board (SPB).
On October 28, 2009, the Assembly Committee on Accountability
and Administrative Review held an oversight hearing entitled
"Administrative Office of the Courts: Improving Transparency."
During this hearing, the authors of the measure learned that the
CWPA does not apply to employees of the judicial branch.
This bill seeks to expand existing whistleblower protections
under the CWPA to employees of the judicial branch in order to
(more)
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promote transparency.
CHANGES TO EXISTING LAW
Existing law , the California Whistleblower Protection Act
(CWPA), 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. (Gov. Code Sec. 8547 et seq.)
Existing law makes a person who intentionally engages in acts of
reprisal or retaliation in violation of the CWPA 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 State Personnel Board (SPB) and the SPB issued, or failed to
issue, findings of its hearings or investigation. (Gov. Code
Sec. 8547.12.)
Existing law provides a process by which a state employee may
file a 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.)
Existing law provides that no public or private employer may
make, adopt, or enforce 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. (Lab.
Code Sec. 1102.5.)
Existing law likewise prohibits public and private employers
from retaliating against an employee for: (a) 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
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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. (Lab. Code Sec. 1102.5.)
Existing law provides that any employer who violates these
provisions 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. (Lab. Code Secs. 1103-04.)
This bill would include a person employed 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.
This bill would authorize 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. This bill would require the State Personnel Board to
investigate any claim filed and make a recommendation regarding
the alleged retaliation.
This bill would provide that any person, except as specified,
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. This bill 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, except as
specified, in an action for civil damages brought by the injured
party.
COMMENT
1.Stated need for the bill
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The joint authors state:
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
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.
Further, the Judicial Council writes in support:
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 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?By creating a unique procedure
for consideration of retaliation complaints, which vests final
decision-making authority for complaints filed with the
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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.
2.Bill would extend specified whistleblower protections to
employees of the judicial branch
This bill would redefine the term "employee" in the CWPA to
specifically include persons employed by the Supreme Court, a
court of appeal, a superior court, or the Administrative Office
of the Courts for the purposes of specified provisions of the
CWPA, as described below.
a) Use of official authority or influence to interfere with
disclosures
Existing law provides that an employee may not directly or
indirectly attempt to use the official authority or influence
of the employee for the purposes of intimidating, threatening,
coercing, or commanding any person for the purpose of
interfering with the rights conferred by the CWPA. (Gov. Code
Sec. 8547.3.) An employee who violates these provisions may
be liable in an action for civil damages brought against the
employee by the offended party. (Id.) This bill would extend
these protections to judicial branch employees.
b) State Auditor investigation and report
The CWPA authorizes the State Auditor to receive complaints
from state employees and members of the public who wish to
report an improper governmental activity. (Gov. Code Sec.
8547.4.) An "improper governmental activity" is defined, as
any action that violates the law, is economically wasteful, or
involves gross misconduct, incompetency, or inefficiency.
(Gov. Code Sec. 8547.2.) The complaints received by the State
Auditor shall remain confidential, and the identity of the
complainant may not be revealed without the permission of the
complainant, except to an appropriate law enforcement agency
conducting a criminal investigation. (Gov. Code Sec. 8547.5.)
If, after investigating, the State Auditor finds that an
employee may have engaged or participated in improper
governmental activities, the State Auditor must prepare an
investigative report and send a copy to the employee's
appointing power. (Gov. Code Sec. 8547.4.) If appropriate,
the State Auditor may also confidentially report the matter to
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the Attorney General, the Legislature, or any other entity
having jurisdiction over the matter, or issue a public report
on the matter, keeping confidential the identities of the
individuals involved. (Gov. Code Sec. 8547.7.) The State
Auditor does not have enforcement powers and cannot order a
department or official to take any action. (Id.)
Within 60 days of receiving the State Auditor's investigative
report, an appointing power must either serve a notice of
adverse action upon the employee or set forth in writing its
reasons for not taking adverse action. (Gov. Code Sec.
8547.4.) The appointing power must submit its written reasons
for not taking adverse action to the State Auditor and State
Personnel Board, and the State Personnel Board may take
adverse action as specified. An employee who is served with a
notice of adverse action may appeal to the State Personnel
Board. (Id.)
This bill would include within the definition of "improper
governmental activity" any activity by the Supreme Court, a
court of appeal, a superior court, or the Administrative
Office of the Courts, or by an employee thereof, who otherwise
meets the criteria of the definition. Thus, the State Auditor
would have authority to receive complaints and investigate
improper governmental activities within the judicial branch.
However, this bill would seemingly exclude the judicial branch
employees from these provisions of existing law "concerning
notice of adverse action and the State Personnel Board."
Presumably, this is intended to exclude adverse actions
against or appeals from judicial branch employees from the
jurisdiction of the State Personnel Board. Instead the role
of the State Personnel Board would be more limited, as
described below.
c) State Personnel Board would have limited role
This bill would provide that an employee or applicant who
files a written complaint with an agency officer alleging acts
of retaliation or other similar acts prohibited by the CWPA
could also file a copy of the written complaint with the State
Personnel Board under penalty of perjury within 12 months of
the most recent act complained about. The State Personnel
Board would be required to investigate any complaint filed and
make a recommendation to the hiring entity of the agency of
the employee or applicant regarding whether retaliation
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resulted in an adverse action regarding the employee and, if
so, which steps should be taken to remedy the situation. In
contrast to other employees covered by the CWPA, the State
Personnel Board would not have authority to do more than make
recommendations, such as order relief for the injured employee
or discipline the employee found to have engaged in improper
governmental activities.
According to the author, this role of the State Personnel
Board has been limited in this bill because of expressed
concerns by the Judicial Council that it is inappropriate to
grant an executive branch agency the power to impose personnel
decisions over employees of a separate branch of government.
However, the penalties and liability imposed on employees
found to be in violation of this bill are substantially the
same as those currently in the CWPA.
The use of the phrase "provisions of Section 8547.4 concerning
notice of adverse actions and the State Personnel Board" in
proposed Section 8547.2 is vague and potentially confusing.
This committee may wish to consider whether these provisions
should be clarified so that they more clearly define or limit
the role of the State Personnel Board under this bill.
d) Penalties and liability
Pursuant to this bill, a judicial branch employee who is found
to have retaliated, threatened or engaged in other similar
acts against another employee or applicant for having made a
protected disclosure shall be subject to a fine not to exceed
$10,000 and imprisonment in a county jail for up to one year.
Further, the employee found to be in violation of this bill
would also be subject to civil liability in an action for
damages brought against him or her by the injured party.
Punitive damages, as well as attorney's fees would also be
available to the injured party. The injured party need not
first file a complaint with his or her agency or the State
Personnel Board before bringing a civil action. As previously
stated, these penalties and liability are substantively
similar to those currently proscribed by the CWPA. However,
the penalties and civil liability shall only apply to justices
and judges subject to the jurisdiction of the Commission on
Judicial Performance to the extent that they are not immune
from liability under the doctrine of judicial immunity. Thus,
judges and justices would not lose the judicial immunity they
traditionally enjoy for adjudicative functions, but could
potentially be subject to penalties and liability for
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violations of the CWPA committed in the course of their
administrative duties.
Support : American Federation of State, County, and Municipal
Employees, AFL-CIO; California Labor Federation; California
Official Court Reporters Association; California Protective
Parents Association; Center for Judicial Excellence; Glendale
City Employees Association; Laborers' International Union of
North America, Locals 777 and 792; Judicial Council; Orange
County Employees Association; Organization of SMUD Employees;
Professional and Technical Engineers, IFPTE Local 21; San
Bernardino Public Employees Association; San Diego County Court
Employees Association; San Luis Obispo County Employees
Association; Santa Rosa City Employees Association; Service
Employees International Union
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : SB 520 (Yee) would revise the CWPA
so that complaints filed by University of California employees
are treated the same as those filed by California State
University employees. This bill is currently on the Assembly
Floor.
Prior Legislation :
SB 219 (Yee) of the 2009 Legislative Session was substantively
similar to SB 520. This bill was vetoed by the Governor.
SB 220 (Yee) of the 2009 Legislative Session would have, among
other things, expanded the application of the CWPA to former
state employees who have been covered by the CWPA during their
employment. This bill has since been substantively amended to
deal with different subject matter.
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Appropriations Committee (Ayes 16, Noes 0)
Assembly Floor (Ayes 70, Noes 0)
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