BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 289 (Melendez) - Legislature: Legislative Employee
Whistleblower Protection Act.
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|Version: June 23, 2015 |Policy Vote: JUD. 7 - 0 |
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|Urgency: No |Mandate: Yes |
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|Hearing Date: August 17, 2015 |Consultant: Robert Ingenito |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: AB 289 would enact the Legislative Employee
Whistleblower Protection Act.
Fiscal
Impact: This bill could result in a potential increase in
General Fund administrative costs. Depending on the number of
complaints filed under the Act, there could be an increase in
cost pressures for additional staff in the Senate and Assembly
Rules Committees for investigative and other administrative
purposes.
Background: The California Whistleblower Protection Act (CWPA) prohibits
state employees and justices and judges from using or attempting
to use their official authority or influence to interfere with
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the rights of an employee to make a good faith communication
that discloses information which may evidence an improper
governmental activity, or any condition that may significantly
threaten the health or safety of employees or the public. The
CWPA also provides a process by which the employee who has made
a protected disclosure may file a written complaint alleging
adverse employment actions such as retaliation, reprisal
threats, or coercion, with a supervisor or manager and with the
State Personnel Board. The CWPA specifies that justices and
judges are liable in an action for damages brought against him
or her by the injured party, except to the extent the judge or
justice is immune from liability under the doctrine of judicial
immunity.
Legislative employees are currently excluded from the CWPA.
Proposed Law:
This bill would establish the Legislative Employee Whistleblower
Protection Act which would, among other things, do the
following:
Prohibit a member of the Legislature or legislative
employee from directly or indirectly using or attempting to
use that person's official authority or influence for the
purpose of intimidating, threatening, coercing, commanding,
or attempting to intimidate, threaten, coerce, or command a
legislative employee for the purpose of interfering with
the right of the legislative employee to make a protected
disclosure.
Except to the extent that a Member of the Legislature is
immune from liability under the doctrine of legislative
immunity, make violations of the Act 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.
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 shall be
liable in a civil action for damages brought by a
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legislative employee.
Allow legislative employee to file a written complaint
with his or her supervisor or manager, or with any other
officer designated by the house of the Legislature by 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 complained about.
Provide that in addition to all other penalties provided
by law, 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 shall be liable in a civil action for damages
brought by a legislative employee; and places the burden of
proof 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.
The bill provides that it 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.
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Related
Legislation: AB 2065 (Melendez) is substantially similar to this
bill, and was held under submission on the suspense file of this
Committee.
Staff
Comments: In 2014, the Senate adopted Senate Resolution 43 and
Senate Resolution 45. SR 43, among other things, does the
following:
Authorizes the appointment of an ethics ombudsperson to
facilitate the receipt of information about potential
ethical violations, and to assist the Senate in providing
remedies for retaliatory conduct to ensure that an
informant or complainant does not suffer adverse
consequences with respect to his or her employment.
Provides confidential accessibility to the ombudsperson,
and requires the establishment of a public hotline
telephone number for purposes of contacting the
ombudsperson.
Specifies that at least once in each biennial session,
each Senator will attend an individual training or review
session conducted by the ombudsperson.
Prohibits retaliation against an employee of the Senate
for reporting information to the Senate Committee on Rules,
the Senate Committee on Legislative Ethics, or any
government or law enforcement agency regarding a possible
violation of the Senate Standards of Conduct, as specified.
SR 45 updates the Standards of Conduct of the Senate to require
each Senator to conduct himself/herself so as to justify the
high trust reposed in him/her by the people and to promote
public confidence in the integrity of the Senate.
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Current law defines "Improper governmental activity" to mean 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.
Staff notes that Section 9149.33(e) of the bill states, in part,
that it is not intended to prevent a supervisor, manager, or
other officer of the Legislature from taking a personnel action
that he or she believes is justified on the basis of evidence
separate and apart from the fact that the person has made a
protected disclosure. It is unclear how this will be
implemented under circumstances where staff has an "at-will"
contractual relationship under which an employee can be
dismissed for any reason - with or without cause- and without
warning. This bill is patterned after the California
Whisteblower Protection Act that applies similar protections to
state and judicial employees who for the most part participate
in the collective bargaining process where the normal standard
for dismissal is that the employer must have a just cause.
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