Amended in Assembly March 19, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 289

Introduced by Assembly Member Melendez

February 11, 2015

An act to add Article 11 (commencing with Section 9149.30) to Chapter 1.5 of Part 1 of Division 2 of Title 2 of the Government Code, relating to the Legislature.

LEGISLATIVE COUNSEL’S DIGEST

AB 289, as amended, Melendez. Legislature: Legislative Employee Whistleblower Protection Act.

Existing law provides procedures for a person to file a complaint alleging violations of legislative ethics. Existing law also authorizes each house of the Legislature to adopt rules for its proceedings and to select committees necessary for the conduct of its business.

This bill would prohibit interference with the right of legislative employees, as defined, to make protected disclosures of ethics violations and would prohibit retaliation against legislative employees who have made protected disclosures. This bill would establish a procedure for legislative employees to report violations of the bill to the Legislature. The bill would also impose civil and criminal liability on a person who interferes with a legislative employee’s right to make a protected disclosure or who engages in retaliatory acts, as specified.

By creating new crimes, 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.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Article 11 (commencing with Section 9149.30)
is added to Chapter 1.5 of Part 1 of Division 2 of Title 2 of the Government Code, to read:

 

Article 11.  Legislative Employee Whistleblower Protection Act

 

9149.30.  

This article shall be known and may be cited as the
Legislative Employee Whistleblower Protection Act.

9149.31.  

The Legislature finds and declares that legislative
employees should be free to report ethical violations without fear
of retribution.

9149.32.  

For the purposes of this article, the following terms
have the following meanings:

(a) “Legislative employee” means an individual, other than a
Member of either house of the Legislature, who is currently
employed by either house of the Legislature.

(b) “Protected disclosure” means the filing of a complaint
begin delete alleging a violation of Article 2 of Chapter 1 of this part or of any end delete
begin insert with any of the following: end insert

begin insert (1) end insert begin insert   end insert begin insert The Joint Legislative Ethics Committee pursuant to Section
8944, alleging a violation by a member of the Legislature. end insert

begin insert (2) end insert begin insert   end insert begin insert The Senate Committee on Legislative Ethics, alleging that
a Member, officer, or employee of the Senate violated any end insert standard
of conduct, as defined by the standing rules of begin delete either house of the
Legislature. end delete begin insert the Senate. end insert

begin insert

(3) The Assembly Legislative Ethics Committee, alleging that
a Member of the Assembly violated any standard of conduct, as
defined by the standing rules of the Assembly.

end insert begin insert

(4) The Assembly Rules Committee, alleging that an employee
of the Assembly violated Article 2 of Chapter 1 of this part.

end insert begin insert

(5) An ethics ombudsperson designated by either house of the
Legislature to receive information about potential ethical
violations.

end insert

(c) “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 begin delete , end delete appointment, promotion, transfer, assignment,
performance evaluation, suspension, or other disciplinary action.

9149.33.  

(a) A Member of the Legislature or legislative
employee shall not directly or indirectly use or attempt to use that
person’s official authority or influence begin delete for the purpose of
intimidating, threatening, coercing, commanding, or attempting end delete
to intimidate, threaten, coerce, or command begin insert , or attempt to
intimidate, threaten, coerce, or command, end insert a legislative employee
for the purpose of interfering with the right of the legislative
employee to make a protected disclosure.

(b) Except to the extent that a Member of the Legislature is
immune from liability under the doctrine of legislative immunity,
a person who violates this section is subject to a fine not to exceed
ten thousand dollars ($10,000) and imprisonment in a 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, a person who
violates this section begin delete shall be end delete begin insert is end insert liable in a civil action for damages
brought by a legislative employee.

(d)  begin delete Nothing in this end delete begin insert This end insert section shall begin insert not end insert be construed to
authorize an individual to disclose information otherwise prohibited
by or under law.

(e) This section is not intended to 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
legislative employee if the supervisor, manager, or other officer
reasonably believes any action or inaction is justified on the basis
of evidence separate begin delete and apart end delete from the fact that the person has
made a protected disclosure.

9149.34.  

A legislative employee may file a written complaint
with begin delete either end delete begin insert his or her supervisor or manager, or with any other
officer designated by the end insert house of the Legislature begin delete pursuant to its
rules end delete begin insert by which he or she is employed, end insert alleging actual or attempted
acts of reprisal, retaliation, threats, coercion, or similar improper
acts prohibited by Section 9149.33 begin insert for having made a protected
disclosure end insert . The complaint, together with a sworn statement under
penalty of perjury that the contents of the complaint are true, or
are believed by the affiant to be true, shall be filed within one year
of the most recent improper act complained about.

9149.35.  

Except to the extent that a Member of the Legislature
is immune from liability under the doctrine of legislative immunity,
a person who intentionally engages in acts of reprisal, retaliation,
threats, coercion, or similar acts against a legislative employee for
having made a protected disclosure is subject to a fine not to exceed
ten thousand dollars ($10,000) and imprisonment in a county jail
for a period not to exceed one year.

9149.36.  

(a) 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, a person
who intentionally engages in acts of reprisal, retaliation, threats,
coercion, or similar acts against a legislative employee for having
made a protected disclosure begin delete shall be end delete begin insert is end insert liable in a civil action for
damages brought by a legislative employee.

(b) (1) In any civil action, once it has been demonstrated by a
preponderance of the evidence that an activity protected by this
article was a contributing factor in the alleged retaliation against
a legislative employee, the burden of proof begin delete shall be end delete begin insert is end insert on the
offending party to demonstrate by clear and convincing evidence
that the alleged action would have occurred for legitimate,
independent reasons even if the legislative employee had not made
a protected disclosure.

(2) Punitive damages may be awarded by the court if the acts
of the offending party are proven to be malicious. If liability is
established, the injured party begin delete shall end delete begin insert is end insert also begin delete be end delete entitled to reasonable
attorney’s fees as provided by law.

(c) A legislative employee is not required to file a complaint
pursuant to Section 9149.34 before bringing an action for civil
damages.

(d) This section is not intended to 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
legislative employee 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) For purposes of this section, “legislative employee” begin delete shall
include end delete begin insert includes end insert a former employee of the Legislature.

9149.37.  

This article does not diminish the rights, privileges,
or remedies of a legislative employee under any other federal or
state law.

SEC. 2.  

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.