BILL NUMBER: AB 2065	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 8, 2014

INTRODUCED BY   Assembly  Member   Gorell
  Members   Melendez   and Gorell


                        FEBRUARY 20, 2014

    An act to repeal and add Section 19132.5 of the Revenue
and Taxation Code, relating to taxation, and making an appropriation
therefor.   An act to amend Sections 8547.2 and 8547.3
of, and to add Section 8547.14 to, the Government Code, relating to
the Legislature. 



	LEGISLATIVE COUNSEL'S DIGEST


   AB 2065, as amended,  Gorell   Melendez 
.  Income taxation: timeliness penalty: abatement. 
 California Whistleblower Protection Act: Legislature:
employees.  
   The California Whistleblower Protection Act prohibits an employee
from using his or her official authority or influence for the purpose
of intimidating, threatening, coercing, or commanding any person for
the purpose of interfering with his or her right to make a protected
disclosure of improper governmental activity. "Employee" is defined
to include specified employees in the executive and judicial branches
of state government. The act requires the State Auditor to
investigate and report on improper governmental activities, as
specified. The act authorizes an employee or applicant for employment
who files a written complaint alleging reprisal, retaliation, or
similar prohibited acts to also file a copy of the written complaint
with the State Personnel Board, together with a sworn statement that
the complaint is true, under penalty of perjury. The act provides
that any person who intentionally engages in acts of reprisal,
retaliation, or similar prohibited acts against a state employee or
applicant for state employment 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 make these provisions of the act applicable to the
Legislature, except for procedures regarding notices of adverse
action and the State Personnel Board and except that penalties would
not apply to the extent that a Member of the Legislature is immune
from liability under the doctrine of legislative immunity. The bill
would authorize an employee of the Legislature or an applicant for
employment with the Legislature to file a written complaint with his
or her supervisor, manager, or other officer designated by the
Committee on Rules of the Assembly or Senate, as applicable, alleging
improper acts, together with a sworn statement that the complaint is
true, under penalty of perjury, within one year of the most recent
improper act complained about. The bill would require the Committees
on Rules of the Assembly and Senate to each designate an officer to
receive these written complaints. By expanding the scope of crimes
under the act, the bill would impose 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.  
   Existing law imposes penalties when a taxpayer fails to timely
file an income tax return or fails to timely pay the tax due as shown
on, or as required to be shown on, the tax return, unless it is
shown that the failure is due to reasonable cause and not due to
willful neglect.  
   The bill would require the Franchise Tax Board, upon taxpayer
request, to abate a failure-to-file or failure-to-pay timeliness
penalty when specified circumstances are met, including where the
taxpayer has paid, or is in a current arrangement to pay, all tax
currently due and the Franchise Tax Board has not imposed a
timeliness penalty in the year of the request or prior 4 years. The
bill would make a continuous appropriation from the General Fund to
the Franchise Tax Board in those amounts necessary to make payments
to those taxpayers who have paid the penalty that is being abated
before the effective date of this bill.  
   The bill would make a legislative finding and declaration
regarding the public purpose served by the bill. 
   Vote:  2/3   majority  . Appropriation:
 yes   no  . Fiscal committee: yes.
State-mandated local program:  no   yes  .


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 8547.2 of the  
Government Code   is amended to read: 
   8547.2.  For the purposes of this article, the following terms
have the following meanings:
   (a)  (1)    "Employee" means  an
  any of the following: 
    (A)     An  individual appointed by
the Governor  , or an   . 
    (B)     An individual  employed or
holding office in a state agency as defined by Section 11000,
including, for purposes of Sections 8547.3 to 8547.7, inclusive, an
employee of the California State University  , or an
  .  
   (C) A Member or employee of the Legislature for purposes of
Sections 8547.3 to 8547.7, inclusive, except for those provisions of
Section 8547.4 concerning notices of adverse action and the State
Personnel Board. 
    (D)     An  individual appointed by
the Legislature to a state board or commission  and who is
not a Member or employee of the Legislature. In addition, "employee"
means a   person   . 
    (E)     A person  employed by the
Supreme Court, a court of appeal, a superior court, or the
Administrative Office of the Courts for the purposes of Sections
8547.3 to 8547.7, inclusive, and Section 8547.13, except for those
provisions of Section 8547.4 concerning notice of adverse action and
the State Personnel Board.  "Employee" includes 
    (2)     For purpose of this subdivision,
"employee" includes  a former employee who met the criteria of
this subdivision during his or her employment.
   (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 governmental activity" means an activity by a state
agency or by an employee that is undertaken in the performance of the
employee's duties, undertaken inside a state office, or, if
undertaken outside a state office by the employee, directly relates
to state government, whether or not that activity is within the scope
of his or her employment, and that (1) is in violation of any 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, (2) is in violation of an Executive order of the
Governor, a California Rule of Court, or any policy or procedure
mandated by the State Administrative Manual or State Contracting
Manual, or (3) is economically wasteful, involves gross misconduct,
incompetency, or inefficiency. For purposes of Sections 8547.4,
8547.5, 8547.7, 8547.10, and 8547.11, "improper governmental activity"
includes any activity by the University of California or by an
employee, including an officer or faculty member, who otherwise meets
the criteria of this subdivision. For purposes of Sections 8547.4,
8547.5, and 8547.13, "improper governmental activity" includes 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 this subdivision. 
For purposes of Sections   8547.4, 8547.5, 8547.7, and
8547.14, "improper governmental activity" includes any activity by
the Legislature or by an employee thereof who otherwise meets the
criteria of this subdivision. 
   (d) "Person" means an individual, corporation, 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,
including a communication based on, or when carrying out, job duties,
that discloses or demonstrates an intention to disclose information
that may evidence (1) an improper governmental 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. Protected
disclosure specifically includes a good faith communication to the
California State Auditor's Office alleging an improper governmental
activity and any evidence delivered to the California State Auditor's
Office in support of the allegation. "Protected disclosure" also
includes, but is not limited to, a complaint made to the Commission
on Judicial Performance.
   (f) "State agency" is defined by Section 11000. "State agency"
includes the University of California for purposes of Sections 8547.5
to 8547.7, inclusive, and the California State University for
purposes of Sections 8547.3 to 8547.7, inclusive. Sections 8547.3 to
8547.7, inclusive, shall apply to the Supreme Court, the courts of
appeal, the superior courts,  and  the
Administrative Office of the Courts  , and the Legislature 
in the same manner as they apply to a state agency.
   SEC. 2.    Section 8547.3 of the  
Government Code   is amended to read: 
   8547.3.  (a) An employee may 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 article.
   (b) For the purpose of subdivision (a), "use of official authority
or influence" includes promising to confer, or conferring, any
benefit; effecting, or threatening to effect, any reprisal; or
taking, or directing others to take, or recommending, processing, or
approving, any personnel action, including, but not limited to,
appointment, promotion, transfer, assignment, performance evaluation,
suspension, or other disciplinary action.
   (c) Any employee who violates subdivision (a) may be liable in an
action for civil damages brought against the employee by the offended
party  , except to the extent that a Member of the Legislature
is immune from liability under the doctrine of legislative immunity
 .
   (d) Nothing in this section shall be construed to authorize an
individual to disclose information otherwise prohibited by or under
law.
   SEC. 3.    Section 8547.14 is added to the  
Government Code   , to read:  
   8547.14.  (a) An employee of the Legislature or applicant for
employment with the Legislature may file a written complaint with his
or her supervisor, manager, or other officer designated for that
purpose by the Committee on Rules of the Assembly or Senate, as
applicable, alleging actual or attempted acts of reprisal,
retaliation, threats, coercion, or similar improper acts prohibited
by Section 8547.3, 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 shall be filed
within one year of the most recent improper act complained about. The
Committees on Rules of the Assembly and Senate shall each designate
an officer to receive written complaints for purposes of this
subdivision.
   (b) Except to the extent that a Member of the Legislature is
immune from liability under the doctrine of legislative immunity, any
person who intentionally engages in acts of reprisal, retaliation,
threats, coercion, or similar improper acts against an employee of
the Legislature or applicant for employment with the Legislature 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, except to
the extent that a Member of the Legislature is immune from liability
under the doctrine of legislative immunity, any person who
intentionally engages in acts of reprisal, retaliation, threats,
coercion, or similar acts against a state employee or applicant for
state 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.
   (d) This section does not prevent a supervisor, manager, or other
officer of the Legislature from taking, directing others to take,
recommending, or approving any personnel action or from taking or
failing to take a personnel action with respect to any employee of
the Legislature or applicant for employment with the Legislature if
the supervisor, manager, or other officer reasonably believes any
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 any civil action, once it has been demonstrated by a
preponderance of evidence that an activity protected by this article
was a contributing factor in the alleged retaliation against a
former, current, or prospective employee, the burden of proof shall
be on the supervisor, manager, or other officer of the Legislature 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.
   (f) This article does not diminish the rights, privileges, or
remedies of any employee under any other federal or state law. 
   SEC. 4.    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.  
  SECTION 1.    Section 19132.5 of the Revenue and
Taxation Code is repealed.  
  SEC. 2.    Section 19132.5 is added to the Revenue
and Taxation Code, to read:
   19132.5.  (a) (1) A taxpayer may elect to request abatement of a
timeliness penalty under this section for a timeliness penalty that
has been considered and rejected for abatement, waiver, or rescission
pursuant to the provisions of the section under which the penalty is
imposed.
   (2) A taxpayer may, in lieu of requesting consideration for
abatement, waiver, or recission pursuant to the provisions of the
section under which the timeliness penalty is imposed, instead
request abatement of a timeliness penalty under this section.
   (b) If a taxpayer described in subdivision (a) requests, either
orally or in writing, the abatement of a timeliness penalty pursuant
to this section, the timeliness penalty shall be abated if all of the
following apply:
   (1) The taxpayer has not previously been required to file a
California return under Part 10 (commencing with Section 17001), this
part, or Part 11 (commencing with Section 23001), or no other
timeliness penalty has been imposed by the Franchise Tax Board in the
calendar year of the request for abatement or in the prior four tax
years.
   (2) The taxpayer has filed all returns required under Part 10
(commencing with Section 17001), this part, or Part 11 (commencing
with Section 23001), as of the date of the taxpayer's request for
abatement.
   (3) Excluding the timeliness penalty that is the subject of the
abatement request, the taxpayer has paid in full, or arranged to pay
pursuant to an installment agreement, any tax, penalties, fees, and
interest due for all currently required returns and the taxpayer is
current with all installment payments.
   (c) For purposes of this section, "timeliness penalty" means a
penalty imposed under Section 19131, 19132, 19172, or 19172.5.
   (d) For purposes of this section:
   (1) A timeliness penalty imposed and subsequently abated due to a
determination of reasonable cause or reasonable cause and not willful
neglect with respect to the taxpayer or the taxpayer's spouse, shall
be considered to have not been imposed.
   (2) A timeliness penalty is considered imposed on the original due
date of the return for the taxable year for which the penalty is
imposed.
   (3) If a taxpayer requests abatement for more than one taxable
year and two or more taxable years would be eligible for abatement
under this section, then only the penalty for the earliest taxable
year shall be abated.
   (4) This section shall apply to requests for abatement made
before, on, or after the effective date of the act adding this
section.
   (e) The Franchise Tax Board may issue any regulations necessary or
appropriate to implement this section.
   (f) Notwithstanding Section 13340 of the Government Code, and
without regard to fiscal year, there is hereby continuously
appropriated from the General Fund to the Franchise Tax Board those
amounts necessary to make the payments required by the act adding
this subdivision with respect to the abatement of penalties paid
before the effective date of the act adding this subdivision.
 
  SEC. 3.    The Legislature finds and declares that
the abatement by this act of timeliness penalties with respect to
the abatement of penalties paid before the effective date of the act
adding this subdivision, serves a public purpose and does not
constitute a gift of public funds within the meaning of Section of
Article XVI of the California Constitution.