BILL ANALYSIS Ó
AB 289
Page 1
Date of Hearing: March 17, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB
289 (Melendez) - As Introduced February 11, 2015
As Proposed to be Amended
SUBJECT: Legislative Employee Whistleblower Protection Act
KEY ISSUES:
1)TO WHAT EXTENT, IF ANY, DOES THIS BILL EXPAND THE RIGHTS OF
LEGISLATIVE EMPLOYEES AND PROTECT THEM FROM UNLAWFUL DISCHARGE
WHEN LEGISLATIVE EMPLOYEES, LIKE ALL PUBLIC EMPLOYEES, HAVE A
CONSTITUTIONAL RIGHT TO REPORT ILLEGAL OR UNETHICAL GOVERNMENT
CONDUCT AND ARE PROTECTED FROM UNLAWFUL DISCHARGE FOR THE
EXERCISE OF THAT RIGHT?
2)TO WHAT EXTENT, IF ANY, DOES THIS BILL FACILITATE THE ABILITY
OF LEGISLATIVE EMPLOYEES TO REPORT THAT THEY HAVE BEEN SUBJECT
TO UNLAWFUL RETALIATION FOR MAKING PROTECTED DISCLOSURES, OR
BEEN DISSUADED FROM MAKING SUCH DISCLOSURES, AND THE
INVESTIGATION OF SUCH REPORTS?
SYNOPSIS
This bill is similar to a number of prior proposals that have
passed this Committee and which have sought to protect from
retaliation legislative employees who make disclosures about
misconduct of other legislative employees and Members of the
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Legislature. Unlike the past proposals, which have added
legislative employees to the Whistleblower Protection Act, which
governs employees of the executive and judicial branches,
however, this bill enacts a separate and more limited provision.
The effect would be to protect current and former legislative
employees from retaliation for filing a complaint with the Joint
Legislative Ethics Committee, alleging that a Member of the
Legislature has violated either the Code of Ethics, or any
standard of conduct set forth in the standing rules of either
house of the Legislature. The bill would subject Members of the
Legislature and legislative staff to potential penalties for
retaliation against a legislative employee who files such a
written complaint, even if no actual violation of the Code of
Ethics or standard of conduct occurred.
SUMMARY: Enacts the Legislative Employee Whistleblower
Protection Act to prohibit an employee or Member of the
Legislature from directly or indirectly using or attempting to
use his or her official authority or influence to interfere with
the right of the legislative employee to file a written
complaint with the Joint Legislative Ethics Committee alleging
that a Member of the Legislature has violated the Code of Ethics
or any standard of conduct of either house of the Legislature,
and prohibit retaliation against the employee for doing so.
Specifically, this bill:
1)Prohibits a Member of the Legislature and a legislative
employee from directly or indirectly using that person's
official authority or influence to interfere with the right of
a legislative employee to make a "protected disclosure."
2)Defines "protected disclosure" as a complaint alleging a
violation of the Code of Ethics (commencing with section 8920
of the Government Code) filed with the Joint Legislative
Ethics Committee, or of any standard of conduct defined by the
standing rules of either house of the Legislature.
3)Authorizes a legislative employee to file a written complaint
with either house of the Legislature pursuant to its rules
alleging actual or attempted acts of reprisal, retaliation,
threats, coercion, or similar improper acts prohibited under
this bill, together with a sworn statement that the contents
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of the written complaint are true, or are believed by the
affiant to be true, under penalty of perjury, within one year
of the most recent improper act.
4)Subjects a Member of the Legislature or a legislative employee
who uses his or her official authority or influence to
interfere with the right of a current legislative employee to
make a protected disclosure to a fine of up to $10,000,
imprisonment in a county jail for up to one year, and damages
in a civil action, except to the extent that a Member of the
Legislature is immune from liability under the doctrine of
legislative immunity.
5)Subjects a Member of the Legislature or a legislative employee
who intentionally engages in an act of retaliation against a
current or former legislative employee for having made a
protected disclosure to a fine of up to $10,000, imprisonment
in a county jail for up to one year, and damages in a civil
action, except to the extent that a Member of the Legislature
is immune from liability under the doctrine of legislative
immunity.
6)Authorizes an award by the court of punitive damages where the
acts of the offending party are proven to be malicious.
7)Provides that where liability has been established, the
injured party would also be entitled to reasonable attorney's
fees.
8)Provides that a legislative employee is not required to file a
complaint before bringing an action for civil damages.
9)Declares that it would not diminish the rights, privileges, or
remedies of any employee under any other federal or state law.
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EXISTING LAW:
1)Pursuant to the California Whistleblower Protection Act
(CWPA), prohibits "improper governmental activities" by state
agencies and employees. (Government Code section 8547.2,
8547.4. All references hereinafter are to the Government
Code, unless otherwise noted.)
2)Defines "improper governmental activity" as 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. (Section
8547.2(c).)
3)Defines employee to include former employees, but specifically
excludes Members and staff of the Legislature and the
Legislature itself from the definitions of "employee" and
"state agency." (Section 8547.2(a), (f).)
4)Directs the State Auditor to accept complaints by mail and via
Internet, and to conduct investigations of alleged improper
governmental activities, and authorizes the State Auditor to
issue reports of its findings including recommended corrective
actions if it finds reasonable cause to believe an improper
governmental activity has occurred. (Sections 8547.4, 8547.5,
8547.7.)
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5)Provides that the State Auditor shall permit complaints to be
filed anonymously and shall keep the identity of all
complainants and witnesses confidential unless given the
express permission of the person, except that the State
Auditor may make the disclosure to a law enforcement agency
that is conducting a criminal investigation. (Section
8547.5.) There is no comparable provision in this bill to
protect the confidentiality of complaints made by legislative
employees.
6)Requires the State Auditor to keep confidential every
investigation, including, but not limited to, all
investigative files and work product, except that the State
Auditor may issue a public report of an investigation that has
substantiated an improper governmental activity, keeping
confidential the identity of the employee or employees
involved. (Section 8547.7.) There is no comparable provision
in this bill to protect the confidentiality of complaints made
by legislative employees.
7)Requires the employing state agency to take adverse employment
action against any employee found by the State Auditor to have
engaged or participated in improper governmental activity or
to set forth in writing its reasons for not taking adverse
action, and likewise requires the employing agency to report
on actions it has taken to implement the State Auditor's
recommendations. (Sections 8547.4, 8547.7.)
8)Prohibits state employees and officers, other than Members and
employees of the Legislature, from directly or indirectly
using or attempting 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 the CWPA. (Section
8547.3.)
9)Defines "use of official authority or influence" to include
promising to confer, or conferring, any benefit; effecting, or
threatening to effect, any reprisal; or taking, or directing
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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. (Section 8547.3.)
10) Provides that any employee who violates the CWPA's
prohibition against use of authority or influence to be liable
in an action for civil damages brought by the offended person.
(Section 8547.3.)
11) 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 the SPB
issued, or failed to issue, findings of its hearings or
investigation. (Section 8547.8.)
12) As part of the Code of Ethics, prohibits a Member of the
Legislature from doing any of the following: (a) having any
direct or indirect interest, financial or otherwise, which is
in substantial conflict with the proper discharge of his or
her duties in the public interest and responsibilities
prescribed in state law; (b) accepting employment that he or
she believes will impair independence or induce the disclosure
of confidential information acquired in the course of official
duties; (c) willfully and knowingly disclosing confidential
information acquired in the course of official duties to any
person for the purpose of pecuniary gain; (d) accepting
anything of value in exchange for agreeing to take action on
behalf of another person before any board or agency, except as
specifically authorized; (e) accepting compensation, reward,
or gift for any services related to the legislative process,
except as specifically authorized; (f) participating, by
voting or any other action, on any matter in which he or she
has a personal interest, except as specifically authorized.
(Section 8920.)
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13) Makes the provisions of the Code of Ethics governing
Members of the Legislature also applicable to any employee of
either house of the Legislature. (Section 8924.)
14) Allows "any person" to file with the Joint Legislative
Ethics Committee a written complaint against a Member of the
Legislature, alleging that the Member is in violation of the
Code of Ethics, commencing with section 8920 of the Government
Code. (Section 8944 (a).)
15) Requires a complaint to the Joint Legislative Ethics
Committee, alleging a violation of the Code of Ethics by a
Member of the Legislature, to meet specified criteria (be in
writing; state the name of the Member alleged to have
committed a violation; set forth allegations with sufficient
clarity and detail to enable the committee to make a
determination whether there is a violation; signed by the
complainant under penalty of perjury; and include a statement
that the facts are true of the complainant's own knowledge or
that the complainant believes them to be true) in order to be
considered a "valid complaint" and requires such complaints to
be filed within 12 months of the alleged violation. (Section
8944 (b), (e).)
16) Requires the Joint Legislative Ethics Committee to promptly
send a copy of each complaint it receives to the Member of the
Legislature who is alleged to have committed the violation.
(Section 8944 (d).)
17) Requires the Joint Legislative Ethics Committee to review
each complaint it receives and determine whether the complaint
alleges facts sufficient to constitute a violation of the Code
of Ethics and, if so, to determine whether there is probable
cause to believe that the allegations in a complaint are true.
(Section 8945 (a).)
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18) Requires the Joint Legislative Ethics Committee to
investigate those complaints that state facts sufficient to
constitute a violation of the Code of Ethics and, after such
an investigation, to notify the complainant and respondent of
its determination and either dismiss the complaint if it
determines that probable cause does not exist, or schedule a
hearing in the matter within 30 days. (Section 8945 (b).)
19) Requires the Joint Legislative Ethics Committee to make a
written determination of whether the Member has violated the
Code of Ethics and to provide its determination, to the house
in which the respondent serves, the Attorney General, the Fair
Political Practices Commission, and the district attorney of
the county in which the alleged violation occurred, and to
make the determination available as a public record. (Section
8945 (e).)
20) Provides in the California Constitution, specifically Cal.
Const., art. IV, § 5, subd. (a), that each house of the
legislature has the sole authority to judge the qualifications
and elections of a candidate for membership in that house.
(Fuller v. Bowen (2012) 203 Cal.App.4th 1476, 1479.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: In support of the bill, the author states:
Currently, employees of the Legislature are not
protected under the California Whistleblower
Protection Act. This lack of protection discourages
legislative employees from reporting information
relating to improper governmental activity.
Every violation of the law by a public official is
also a violation of the public trust. The Legislature
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has a responsibility to protect the integrity of the
institution by creating an atmosphere of transparency
and accountability. Given their proximity to members
of the Legislature, legislative employees have a
unique opportunity to help provide this accountability
by reporting any suspicious or unethical behavior.
This will not take place, however, if those employees
are not afforded protections from intimidation or
coercion.
Legislative Employees, Like All Public Employees, Have A
Constitutionally Protected Right to Report Improper Legislative
Conduct Which Is Not Significantly Expanded By This Bill.
Legislative employees, like all other public employees, clearly
do not surrender all of their First Amendment rights by reason
of their employment. Rather, the First Amendment protects their
rights, in certain circumstances, to speak about government
misconduct that address matters of public concern. (See Garcetti
v. Ceballos (2006) 547 U.S. 410, 419, citing Pickering v. Board
of Educ. (1968) 391 U.S. 563.) Even without a law providing
specific whistleblower protection, employees who exercise their
constitutional rights by reporting governmental misconduct under
these circumstances are protected from wrongful termination.
(Ostrofe v. H.S. Crocker Co., Inc. (9th Cir. 1982) 670 F.2d
1378, 1383-84 (upholding claim of wrongful discharge for
objecting to employer's violation of Clayton Act, despite
absence of anti-retaliation clause in order to promote
"interests of antitrust enforcement"), aff'd, 740 F.2d 739 (9th
Cir. 1984), cert. denied, 469 U.S. 1200 (1985).)
Under the Pickering analysis, above, a complaint about
legislative misconduct would almost certainly be made by the
legislative employee acting as a citizen, rather than as part of
his or her job duties, regarding a matter of public concern. A
court would likely recognize and protect the ability of a
legislative employee to express his or her opinion about the
misconduct, given what the U.S. Supreme Court has recognized as
"the importance of promoting the public's interest in receiving
the well-informed views of government employees engaging in
civic discussion." (Garcetti v. Ceballos, supra, 547 U.S., at
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419.) Therefore, legislative employees would likely be found to
have a First Amendment right to express their opinions about
legislative misconduct, including the ability to file written
complaints alleging such misconduct, regardless of whether the
provisions of this well-intentioned bill become law.
While Pickering gives a public employee the opportunity to make
a First Amendment claim, it makes it somewhat difficult for a
public employee to do so, requiring the employee to show that he
or she made a disclosure while acting as a citizen (as opposed
to an employee) and that the disclosure was about a matter of
public concern. (Garcetti v. Ceballos, 547 U.S. at 419.)
Pickering also requires a court to balance the public's interest
in disclosure of wrongdoing against the public official's
interest in public service efficiency. (Ibid.) Under a
whistleblower statute like the one proposed in this bill, on the
other hand, an employee is just required to show that (1) he or
she reported or attempted to report an act of governmental
misconduct, and (2) he or she was the victim of retaliation,
threats, or dissuasion as a result of making or attempting to
make that report.
Although the bill gives neither new rights to legislative
employees who make "protected disclosures" about legislative
misconduct, nor a new mechanisms for reporting such disclosures,
it does a number of things that may encourage legislative
employees to make such disclosures. First, it defines a number
of ways for reporting legislative misconduct that legislative
employees are allowed to use under existing law as "protected
disclosures." Second, it prohibits specific acts: dissuading or
attempting to dissuade a legislative employee from making a
protected disclosure and retaliating against a legislative
employee for making a protected disclosure. Third, it provides a
new mechanism for a legislative employee to report to the
Legislature that he or she has been subjected to either
retaliation for making a "protected disclosure," or
intimidation, threats, or duress for attempting to make such a
disclosure.
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"Protected Disclosures"- This measure largely models itself on
the CWPA, which provides a formal mechanism for most public
employees (including individuals who are appointed to office by
the Governor, hold office in a state agency, work for the
courts, the California State University and in some cases, the
University of California, but excluding a Member or employee of
the State Legislature) to submit complaints to the State Auditor
about "improper governmental activities," and for the Auditor to
investigate those complaints in a confidential manner. (Section
8547.5.)
This bill does not create a new mechanism for the submission and
investigation of complaints of legislative misconduct, but it
does adopt a new definition of "protected disclosure" that is
specific to legislative employees and their reports of
misconduct by other employees and Members of the Legislature.
As currently in print, however, the definition does not take
into account all of the options which are now available to
legislative employees for reporting improper legislative
activities. Also, it confuses the role of the JLEC - to
investigate violations of "Article 2 of Chapter 1 of this part"
(the Code of Ethics, commencing at Section 8920, applicable to
both Members and employees of the Legislature) by Members of the
Legislature - with the role of various committees within each
house of the Legislature to investigate violations of standards
of conduct governing Members (and employees and officers in the
Senate) of that house.
Legislative employees have a number of ways to report
legislative misconduct under existing law, all of which are
consistent with the state constitutional decree that each house
of the Legislature has the sole authority to determine and judge
the qualifications for membership in that house. (Cal. Const.,
art. IV, § 5, subd. (a); See Fuller v. Bowen, supra, 203
Cal.App.4th at p. 1479.) For example, existing law allows "any
person" to submit a complaint to JLEC, alleging a violation of
the Code of Ethics. (Section 8944 (a).) JLEC is required to
investigate the merits of the complaint. (Section 8945.) As
soon as a complaint is filed with JLEC, "the committee shall
promptly send a copy of the complaint to the Member of the
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Legislature alleged to have committed the violation complained
of, who shall thereafter be designated as the respondent, and
the committee may send a copy of the complaint to the house in
which the respondent serves, the Attorney General, the Fair
Political Practices Commission, and the district attorney of the
county in which the alleged violation occurred." (Section 8944
(d).) All hearings of the committee are public. (Section 8948
(c).) In fact, the entire process is open and public, other
than for the internal deliberations of the committee, but even
those can be made public upon the request of the respondent.
(Section 8945(e).) Just as the State Auditor has no independent
"enforcement power" (Section 8547.7 (b)), JLEC cannot take
action against a respondent whom it finds to be in violation of
the law. (Section 8950 (b).) But like the State Auditor, JLEC
can recommend action by other entities, including disciplinary
action by the house in which the Member serves. (Sections
8547.7 (b), 8950 (b).) After a hearing, JLEC is required to
notify the same law and regulatory enforcement entities of its
findings that it notifies upon the receipt of a complaint: the
Attorney General, the Fair Political Practices Commission, and
the district attorney of the "appropriate county." (Section
8950.)
The standing rules of both houses of the Legislature provide for
the filing of a verified complaint alleging a violation of the
standards of conduct governing the respective house. The
Standing Rules of the Assembly allow any person to file with the
Assembly Legislative Ethics Committee a complaint alleging that
a Member has violated any "standard of conduct," defined as the
Code of Ethics, as well as "any other provision of law or
legislative rule that governs the conduct of Members of the
Assembly." (Rule 22.5 (d), (e).) Likewise, the Standing Rules
of the Senate allow any person to file a complaint with the
Senate Committee on Legislative Ethics, alleging a violation of
the standards of conduct of the Senate, governing the conduct of
Members, officers, and employees of the Senate. (Rule 12.3
(c).) Finally, the Senate recently adopted Senate Resolution 43
(Steinberg and De Leon, 2014) which, among other things,
authorizes "the appointment of an ethics ombudsperson to
facilitate the receipt of information about potential ethical
violations, provides confidential accessibility to the
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ombudsperson, and requires the establishment of a public hotline
telephone number for purposes of contacting the ombudsperson."
The author has proposed that the definition of "protected
disclosure" be amended as follows:
(b) "Protected disclosure" means the filing of a complaint
one of the following: (1) A complaint described in Section
8944 with the Joint Legislative Ethics Committee, alleging
a violation of Article 2 of Chapter 1 of this part or of ,
commencing at Section 8920, committed by a Member of the
Legislature, (2) A complaint with the Senate Committee on
Legislative Ethics, alleging a violation of any standard of
conduct, as defined by the standing rules of either house
of the Legislature the Senate, committed by any Member,
officer, or employee of the Senate, (3) A complaint with
the Assembly Legislative Ethics Committee, alleging a
violation of any standard of conduct, as defined by the
standing rules of the Assembly, committed by any Member of
the Assembly, (4) A complaint with the Assembly Rules
Committee alleging a violation of Article 2 of Chapter 1 of
this part or of, commencing at Section 8920 committed by an
employee of the Assembly, or (5) A complaint to an
ombudsperson designated by either house of the Legislature
to facilitate the receipt of information about potential
ethical violations committed by Members or employees of the
Legislature.
As proposed to be amended, the definition of "protected
disclosure" takes into account the full panoply of options
available to legislative employees under existing laws, rules,
and procedures (described above) for reporting improper
legislative activities. The proposed amendments also clarify
the appropriate role of the Joint Legislative Ethics Committee
(JLEC) - to investigate violations of "Article 2 of Chapter 1 of
this part" (the Code of Ethics, commencing at Section 8920,
applicable to both Members and employees of the Legislature) by
Members of the Legislature, and takes into account the roles of
various committees within each house of the Legislature to
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investigate violations of standards of conduct governing Members
(and employees and officers in the Senate) of that house.
The Civil And Criminal Penalties For Violations Of The Proposed
Legislative Employees Whistleblower Protection Act Are Similar,
But Not Identical, To The Penalties for Violations Of The CWPA.
The CWPA subjects a person to both civil and criminal liability
if he or she "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." (Section 8547.8 (b), (c).) Likewise,
this bill provides that a person who intentionally engages in
acts of reprisal or retaliation against a legislative employee
is subject to a fine of up to $10,000 and imprisonment in the
county jail for up to one year. In addition to this criminal
penalty, the person who intentionally commits an act of
retaliation is subject to a "civil action for damages brought by
the legislative employee" who is the victim of such retaliation.
The penalties in the proposed bill differ from the CWPA,
however, for the act of dissuading an employee from making a
protected disclosure. Whereas the CWPA provides that any
employee who uses his or her authority or influence to dissuade
a public employee from reporting improper governmental activity
to the State Auditor or the State Personnel Board is liable only
for civil damages brought by the offended person, it does not
subject the employee to criminal prosecution. (Section 8547.3.)
This measure, on the other hand, proposes to make a person who
dissuades a legislative employee from making a protected
disclosure subject to both civil and criminal liability.
What is the reason for the distinction in penalties in the CWPA?
Is committing an act of retaliation (i.e. either firing the
employee, or taking some adverse action against the employee)
more serious than merely threatening to do so? The CWPA seems
to think so. The author is aware that this bill imposes both
civil, as well as criminal liability for the act of dissuading,
or attempting to dissuade a legislative employee from making a
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protected disclosure, whereas the CWPA, upon which this bill is
modeled, imposes only civil liability for such an act. The
Committee may want to consider whether this measure should be
amended to provide for penalties that are consistent with the
CWPA.
In addition to allowing a state employee to make a "protected
disclosure" (to the State Auditor), the CWPA allows a state
employee to report to "his or her supervisor, manager, or the
appointing power" that he or she has been the victim of
retaliation or threats related to that disclosure. (Section
8547.8 (a).) Employees of the University of California (UC) and
California State University (CSU) also have the ability to
report such retaliation or threats with their employers. In all
of these cases, the statutory language clarifies that the
complaint can be made to a supervisor, manager, or anyone
designated by the employer to receive such a report. The CWPA
language also clarifies that the employee makes the report of
retaliation or threats to the employer after the employee has
made, or attempted to make, a protected disclosure.
As proposed to be amended, this bill includes similar language,
allowing reports of retaliation to be made to a supervisor,
manager, or anyone else designated by the employer and
clarifying that a report of retaliation or threats related to a
protected disclosure must be made after the employee has made a
protected disclosure. For consistency with the CWPA, the author
proposes to amend the bill as follows:
9149.34. A legislative employee may file a written
complaint with either his or her supervisor or manager, or
with any other officer designated by the house of the
Legislature pursuant to its rules in which he or she is
employed, alleging actual or attempted acts of reprisal,
retaliation, threats, coercion, or similar improper acts
prohibited by Section 9149.33 for having made a protected
disclosure. 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
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complained about.
Nevertheless, the bill fails to provide guidance about what, if
anything, the Legislature is required to do in response to
receiving a report of retaliation, what should be done if a
report is found to be valid, what should be done if a report is
found to be unfounded, whether the respondent should be
notified, whether information provided by the complainant,
including the complainant's identity, should be confidential,
whether investigative documents are confidential, or whether the
respondent has any opportunity to respond to the allegations of
the complaint, among other things.
Existing law provides many such details for investigations
conducted by the State Auditor and JLEC. For example, the State
Auditor is required to maintain the confidentiality of anyone
who makes an allegation of improper governmental activity to the
Auditor.
The identity of the person providing the information
that initiated the investigation, or of any person
providing information in confidence to further an
investigation, shall not be disclosed without the
express permission of the person providing the
information except that the State Auditor may make the
disclosure to a law enforcement agency that is
conducting a criminal investigation. (Section 8547.5
(b).)
All investigative files and work product of the State Auditor
are required to be kept confidential. (Section 8547.7 (c).) An
exception allows the State Auditor to issue a public report of
an investigation when it is "necessary to serve the interests of
the state," but the Auditor is nevertheless required to keep
"confidential the identity of the employee or employees
involved" in such a report. (Ibid.)
JLEC, on the other hand, conducts a very open and transparent
investigation of complaints. As soon as a complaint is filed
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with JLEC, the committee is required to notify the Member of the
Legislature alleged to have committed the violation, the house
in which the respondent serves, the Attorney General, the Fair
Political Practices Commission, and the district attorney of the
county in which the alleged violation occurred. (Section 8944
(d).) All hearings of the committee are public. (Section 8948
(c).) In fact, the entire process is open and public, other
than for the internal deliberations of the committee, but even
those can be made public upon the request of the respondent.
(Section 8945(e).)
This bill provides neither the confidentiality protections that
are available under the CWPA, nor the transparency and due
process provisions of a public investigation and hearing that
are available under the JLEC process, for reports of retaliation
or threat related to a protected disclosure that are made to the
Legislature. The author may want to consider including
additional details in the bill about what the Legislature should
do upon receipt of a report that an employee was subjected to
retaliation or threats for making or attempting to make a
protected disclosure.
Considering that the First Amendment already protects the right
of legislative employees to complain about legislative
misconduct; case law likely protects legislative employees who
report legislative misconduct from wrongful discharge; existing
laws, rules, and procedures provide ample mechanisms for
complaints about legislative misconduct to be made; and those
laws, rules and procedures provide far more detail than this
bill about how misconduct should be investigated, a new process
for legislative employees to file written complaints of
retaliation or threats with the Legislature may not be
necessary. However, clarifying which acts constitute
interference with exercise of the right of legislative employees
to report misconduct and giving legislative employees the
ability to report to their employer that they were subjected to
either retaliation for making a protected disclosure, or threats
to prevent or dissuade the employee from making a protected
disclosure, may add some clarity to the law, give legislative
employees a clear statutory basis for bringing a civil action,
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and provide legislative employees with an additional option for
reporting retaliatory acts.
Author's technical clarifying amendments:
1. On Page 2, at line 29, strike out "for the purpose of"
2. On Page 2, at line 30, strike in its entirety.
3. On Page 2, at line 31, after "command," insert: , or
attempt to intimidate, threaten, coerce, or command
Prior Related Legislation. AB 2065 (Melendez, 2014) as
introduced would have added legislative employees to the CWPA
(passed by the Assembly Judiciary Committee by a vote of 10-0),
but was amended in the Senate to have substantially the same
form as this bill. AB 2065 passed the Senate Judiciary
Committee (7-0) and was referred to the Senate Appropriations
Committee Suspense File, where it did not move off of the
Suspense File.
AB 2256 (Portantino, 2012) would have provided protections for
legislative employees and Members under the California
Whistleblower Protection Act (CWPA). AB 2256 failed passage in
the Assembly Committee on Judiciary.
AB 1378 (Portantino, 2012) was substantially similar to AB 2065
(Melendez, 2014), as introduced, and would have provided
protections for legislative employees and Members under the
CWPA. AB 1378 died in the Assembly Committee on Appropriations.
AB 1749 (Lowenthal and Strickland, Ch. 160, Stats. 2010)
provided judicial branch employees with CWPA protections.
SB 650 (Yee, Ch. 104, Stats. 2010) revised the CWPA so that
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complaints of retaliation filed by University of California
employees are treated the same as those filed by California
State University employees.
SB 220 (Yee, 2010), among other things, would have expanded the
application of the CWPA to former state employees who have been
covered by the CWPA during their employment. Those provisions
were included in AB 567 (Villines, Ch. 452, Stats. 2009), and SB
220 was subsequently amended to deal with a different subject
matter.
SB 219 (Yee, 2009) was substantively similar to SB 650 but was
vetoed by Governor Schwarzenegger because of the concern that
the bill would discourage University of California employees
from exhausting administrative remedies before filing an action.
AB 567 (Villines, Ch. 452, Stats. 2009), among other things,
added an individual appointed by the Legislature to a state
board or commission and who is not a Member or employee of the
Legislature to the list of state employees covered by the CWPA
and provided that state employee includes any former employee
who met specified criteria during his or her employment.
SB 1267 (Yee, 2007), among other things, would have authorized
former state employees to file a complaint under the CWPA and
revised some of the provisions relating to the filing,
investigation, hearing, and processing of complaints filed by
state employees under the CWPA. SB 1267 was held under
submission in the Senate Committee on Appropriations.
REGISTERED SUPPORT / OPPOSITION:
Support
AB 289
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None on file
Opposition
None on file
Analysis Prepared
by: Alison Merrilees/JUD./(916) 319-2334