BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                  AB 1749|
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                                    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])  

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          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  







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          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  







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          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.   







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            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







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          RJG:mw  8/2/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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