Amended in Senate June 23, 2015

Amended in Assembly May 11, 2015

Amended in Assembly March 19, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 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 prohibitions 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:

P2    1

SECTION 1.  

Article 11 (commencing with Section 9149.30)
2is added to Chapter 1.5 of Part 1 of Division 2 of Title 2 of the 3Government Code, to read:

4 

5Article 11.  Legislative Employee Whistleblower Protection Act
6

 

7

9149.30.  

This article shall be known and may be cited as the
8Legislative Employee Whistleblower Protection Act.

9

9149.31.  

The Legislature finds and declares that legislative
10employees should be free to report ethical violations without fear
11of retribution.

12

9149.32.  

For the purposes of this article, the following terms
13have the following meanings:

14(a) “Legislative employee” means an individual, other than a
15Member of either house of the Legislature, who is currently
16employed by either house of the Legislature.

17(b) “Protected disclosure” means the filing of a complaint with
18any of the following:

19(1) The Joint Legislative Ethics Committee pursuant to Section
208944, alleging a violation by a member of the Legislature.

21(2) The Senate Committee on Legislative Ethics, alleging that
22a Member, officer, or employee of the Senate violated any standard
23of conduct, as defined by the standing rules of the Senate.

24(3) The Assembly Legislative Ethics Committee, alleging that
25a Member of the Assembly violated any standard of conduct, as
26defined by the standing rules of the Assembly.

27(4) The Assembly Rules Committee, alleging that an employee
28of the Assembly violated Article 2 of Chapter 1 of this part.

29(5) An ethics ombudsperson designated by either house of the
30Legislature to receive information about potential ethical violations.

P3    1(c) “Use of official authority or influence” includes promising
2to confer, or conferring, any benefit; effecting, or threatening to
3effect, any reprisal; or taking, or directing others to take, or
4recommending, processing, or approving, any personnel action,
5including appointment, promotion, transfer, assignment,
6performance evaluation, suspension, or other disciplinary action.

7

9149.33.  

(a) A Member of the Legislature or legislative
8employee shall not directly or indirectly use or attempt to use that
9person’s official authority or influence to intimidate, threaten,
10coerce, or command, or attempt to intimidate, threaten, coerce, or
11command, a legislative employee for the purpose of interfering
12with the right of the legislative employee to make a protected
13disclosure.

14(b) Except to the extent that a Member of the Legislature is
15immune from liability under the doctrine of legislative immunity,
16a person who violates this section is subject to a fine not to exceed
17ten thousand dollars ($10,000) and imprisonment in a county jail
18for a period not to exceed one year.

19(c) In addition to all other penalties provided by law, except to
20the extent that a Member of the Legislature is immune from
21liability under the doctrine of legislative immunity, a person who
22violates this section is liable in a civil action for damages brought
23by a legislative employee.

24(d) This section shall not be construed to authorize an individual
25to disclose information otherwise prohibited by or under law.

26(e) This section is not intended to prevent a supervisor, manager,
27or other officer of the Legislature from taking, directing others to
28take, recommending, or approving any personnel action or from
29taking or failing to take a personnel action with respect to any
30legislative employee if the supervisor, manager, or other officer
31reasonably believes any action or inaction is justified on the basis
32of evidence separate from the fact that the person has made a
33protected disclosure.

34

9149.34.  

A legislative employee may file a written complaint
35with his or her supervisor or manager, or with any other officer
36designated by the house of the Legislature by which he or she is
37employed, alleging actual or attempted acts of reprisal, retaliation,
38threats, coercion, or similar improper acts prohibited by Section
399149.33 for having made a protected disclosure. The complaint,
40together with a sworn statement under penalty of perjury that the
P4    1contents of the complaint are true, or are believed by the affiant
2to be true, shall be filed within one year of the most recent improper
3act complained about.

4

9149.35.  

(a) Except to the extent that a Member of the
5Legislature is immune from liability under the doctrine of
6legislative immunity, a person who intentionally engages in acts
7of reprisal, retaliation, threats, coercion, or similar acts against a
8legislative employee for having made a protected disclosure is
9subject to a fine not to exceed ten thousand dollars ($10,000) and
10imprisonment in a county jail for a period not to exceed one year.

11(b) For purposes of this section, “legislative employee” includes
12a former employee of the Legislaturebegin insert if the complaint is filed within
13one year of the most recent improper act complained aboutend insert
.

14

9149.36.  

(a) In addition to all other penalties provided by law,
15except to the extent that a Member of the Legislature is immune
16from liability under the doctrine of legislative immunity, a person
17who intentionally engages in acts of reprisal, retaliation, threats,
18coercion, or similar acts against a legislative employee for having
19made a protected disclosure is liable in a civil action for damages
20brought by a legislative employee.

21(b) (1) In any civil action, once it has been demonstrated by a
22preponderance of the evidence that an activity protected by this
23article was a contributing factor in the alleged retaliation against
24a legislative employee, the burden of proof is on the offending
25party to demonstrate by clear and convincing evidence that the
26alleged action would have occurred for legitimate, independent
27reasons even if the legislative employee had not made a protected
28disclosure.

29(2) Punitive damages may be awarded by the court if the acts
30of the offending party are proven to be malicious. If liability is
31established, the injured party is also entitled to reasonable
32attorney’s fees as provided by law.

33(c) A legislative employee is not required to file a complaint
34pursuant to Section 9149.34 before bringing an action for civil
35damages.

36(d) This section is not intended to prevent a supervisor, manager,
37or other officer of the Legislature from taking, directing others to
38take, recommending, or approving any personnel action or from
39taking or failing to take a personnel action with respect to any
40legislative employee if the supervisor, manager, or other officer
P5    1reasonably believes any action or inaction is justified on the basis
2of evidence separate and apart from the fact that the person has
3made a protected disclosure.

4(e) For purposes of this section, “legislative employee” includes
5a former employee of the Legislaturebegin insert if the complaint is filed within
6one year of the most recent improper act complained aboutend insert
.

7

9149.37.  

This article does not diminish the rights, privileges,
8or remedies of a legislative employee under any other federal or
9state law.

10

SEC. 2.  

No reimbursement is required by this act pursuant to
11Section 6 of Article XIII B of the California Constitution because
12the only costs that may be incurred by a local agency or school
13district will be incurred because this act creates a new crime or
14infraction, eliminates a crime or infraction, or changes the penalty
15for a crime or infraction, within the meaning of Section 17556 of
16the Government Code, or changes the definition of a crime within
17the meaning of Section 6 of Article XIII B of the California
18Constitution.



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