BILL ANALYSIS Ó
AB 289
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Date of Hearing: May 6, 2015
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Jimmy Gomez, Chair
AB
289 (Melendez) - As Amended March 19, 2015
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Urgency: No State Mandated Local Program: YesReimbursable:
No
SUMMARY:
This bill, (as proposed to be amended), enacts the Legislative
Whistleblower Protection Act to protect legislative staff from
retaliation in response to filing an ethics complaint.
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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,"
defined as a complaint filed, as applicable, with the Joint
Legislative Ethics Committee, the Assembly or Senate Ethics
Committees, respectively, the Assembly Rules Committee, or an
ethics ombudsperson designated by either house of the
Legislature.
2)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.
3)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.
4)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
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legislative immunity.
FISCAL EFFECT:
1)Potential nonreimbursable costs for incarceration, offset to
some extent by fine revenues.
2)No additional costs to the Legislature, as the bill is
consistent with existing legislative processes for addressing
ethic complaints.
COMMENTS:
1)Purpose. This bill is similar to recent proposed that have
sought to protect from retaliation legislative employees who
make disclosures about misconduct of other legislative
employees and Members of the Legislature. Unlike the past
proposals, which would have added legislative employees to the
California Whistleblower Protection Act (CWPA), which governs
employees of the executive and judicial branches, 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.
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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.
2)Recommended Amendment. As someone subject to alleged
retaliation by a Member of the Legislature or a staff member
for making a protected disclosure could very likely be a
former legislative employee, the bill should be amended to
make Section 9149.36 also protect former employees.
3)Prior Legislation. AB 2065 (Melendez) of 2014, as introduced
and passed by the Assembly, would have added legislative
employees to the CWPA. The bill, which was amended in the
Senate into substantially the same form as the introduced
version of AB 289, was held on Suspense in Senate
Appropriations.
AB 2256 (Portantino) of 2012, which provided protections for
legislative employees and Members under the CWPA, failed
passage in Assembly Judiciary.
AB 1378 (Portantino) of 2012, which was substantially similar
to AB 2256, was held on this committee's Suspense file.
Analysis Prepared by:Chuck Nicol / APPR. / (916)
319-2081
AB 289
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