BILL ANALYSIS Ó
AB 289
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Date of Hearing: April 23, 2015
ASSEMBLY COMMITTEE ON RULES
Richard Gordon, Chair
AB 289
(Melendez) - As Amended March 19, 2015
SUBJECT: Legislature: Legislative Employee Whistleblower
Protection Act.
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.
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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
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.
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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.
EXISTING LAW:
1)Prohibits, pursuant to the California Whistleblower Protection
Act (CWPA), "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
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"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.)
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.)
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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
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) Prohibits, as part of the Code of Ethics, a Member of the
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Legislature from doing any of the following: (1) 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; (2) accepting employment that he or
she believes will impair independence or induce the disclosure
of confidential information acquired in the course of official
duties; (3) willfully and knowingly disclosing confidential
information acquired in the course of official duties to any
person for the purpose of pecuniary gain; (4) 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; (5) accepting compensation, reward,
or gift for any services related to the legislative process,
except as specifically authorized; (6) 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.)
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
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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).)
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).)
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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: Unknown
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
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.
REGISTERED SUPPORT / OPPOSITION:
AB 289
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Support
None on file
Opposition
None on file
Analysis Prepared by:Mukhtar Ali / RLS. / (916) 319-2800