BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 1749| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ CONSENT Bill No: AB 1749 Author: Bonnie Lowenthal (D) and Strickland (R), et al Amended: 4/27/10 in Assembly Vote: 21 SENATE JUDICIARY COMMITTEE : 4-0, 6/29/10 AYES: Corbett, Harman, Hancock, Leno NO VOTE RECORDED: Walters SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8 ASSEMBLY FLOOR : 70-0, 5/24/10 - See last page for vote SUBJECT : California Whistleblower Protection Act: Administrative Office of the Courts SOURCE : Author DIGEST : This bill expands existing whistleblower protections under the California Whistleblower Protection Act to include employees of the judicial branch. ANALYSIS : 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. (Section 8547 et seq. of the Government Code [GOV]) CONTINUED AB 1749 Page 2 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 SPB issued, or failed to issue, findings of its hearings or investigation. (GOV Section 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 SPB. Existing law requires 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 Section 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. (Section 1102.5 of the Labor Code [LAB]) Existing law likewise prohibits public and private employers from retaliating against an employee for (1) 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, (2) 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 (3) having exercised his/her rights to do so in any former employment. (LAB Section 1102.5) Existing law provides that any employer who violates these AB 1749 Page 3 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 Sections 1103-04) This bill includes 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 CWPA, except as specified. This bill 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 SPB, together with a sworn statement that the written complaint is true, under penalty of perjury. This bill requires SPB to investigate any claim filed and make a recommendation regarding the alleged retaliation. This bill provides 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 prohibits an employee of those judiciary entities from using his/her official authority or influence in violation of these provisions, and makes that employee liable, except as specified, in an action for civil damages brought by the injured party. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: Yes SUPPORT : (Verified 8/2/10) American Federation of State, County and Municipal AB 1749 Page 4 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 of California 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 ARGUMENTS IN SUPPORT : 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. AB 1749 Page 5 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 of California 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 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." ASSEMBLY FLOOR : AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill Berryhill, Tom Berryhill, Blakeslee, Block, Blumenfield, Bradford, Brownley, Buchanan, Caballero, Charles Calderon, Carter, Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon, DeVore, Emmerson, Eng, Feuer, Fletcher, Fong, Fuentes, Fuller, Furutani, Gaines, Galgiani, Garrick, Gilmore, Hagman, Harkey, Hayashi, Hill, Huber, Huffman, Jeffries, Jones, Lieu, Logue, Bonnie Lowenthal, Ma, Mendoza, Miller, Monning, Nestande, Niello, Nielsen, V. Manuel Perez, Portantino, Ruskin, Salas, Silva, Skinner, Smyth, Solorio, Audra Strickland, Swanson, Torlakson, Torres, Torrico, Tran, Yamada, John A. Perez NO VOTE RECORDED: Bass, Evans, Hall, Hernandez, Knight, Nava, Norby, Saldana, Villines, Vacancy AB 1749 Page 6 RJG:mw 8/2/10 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****