BILL ANALYSIS Ó
AB 1788
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Date of Hearing: April 19, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 1788
(Melendez) - As Introduced February 4, 2016
PROPOSED CONSENT (As Proposed to be Amended)
SUBJECT: Legislature: Legislative Employee Whistleblower
Protection Act
KEY ISSUE: SHOULD THE LEGISLATURE ENACT A LAW THAT GRANTS
SPECIAL PROTECTION FROM UNLAWFUL DISCHARGE TO LEGISLATIVE
EMPLOYEES WHEN THEY, LIKE ALL PUBLIC EMPLOYEES, HAVE A
CONSTITUTIONAL RIGHT TO REPORT ILLEGAL OR UNETHICAL GOVERNMENT
CONDUCT WITH PROTECTION FROM UNLAWFUL DISCHARGE, AND OTHER
MECHANISMS EXISTING UNDER CURRENT LAW TO FACILITATE THE
INVESTIGATION OF ILLEGAL CONDUCT BY MEMBERS AND STAFF OF THE
LEGISLATURE?
SYNOPSIS
This bill is similar to a number of prior proposals that have
passed this Committee, including a virtually identical bill that
passed this Committee just last year, AB 289, that have sought
to protect from retaliation any legislative employees who make
disclosures about misconduct of other legislative employees and
Members of the Legislature. It would protect current and former
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legislative employees from retaliation for filing a complaint
with the Joint Legislative Ethics Committee (JLEC), 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. These provisions are
similar to, but significantly different from, the provisions of
the California Whistleblower Protection Act (CWPA), which
applies to employees of the state but not, because of separation
of powers issues, to employees of the Legislature. Under
current law, legislative employees have a number of ways to
report legislative misconduct, 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. For example,
existing law allows "any person" to submit a complaint to the
Joint Legislative Ethics Committee of the Legislature, alleging
a violation of the Code of Ethics. The entire JLEC process is
open and public.
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. Although the bill gives neither new rights to
legislative employees who make "protected disclosures" about
legislative misconduct, nor 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 legislative staff to report
legislative misconduct 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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Whereas the bill in print does not ensure the confidentiality of
a legislative whistleblower's identity or complaint, as proposed
to be amended, it provides similar confidentiality protections
that are available to state employees and investigative files
under the CWPA. However, it does not appear to be appropriate
to make findings of a sustained complaint public, given the
authority of the Legislature to discipline staff for misconduct.
This bill, which is sponsored by the author, is supported by
California Civil Liberties Advocacy and Southwest California
Legislative Council and has no opposition on file. Because of
timing issues, the amendments that are proposed to be taken as
author's amendments will be taken in the Assembly Appropriations
Committee.
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 (JLEC)
alleging that a Member of the Legislature has violated the Code
of Ethics or any standard of conduct of either house of the
Legislature. 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 filed with JLEC, or of any
standard of conduct defined by the standing rules of either
house of the Legislature with one of the following:
a) The Joint Legislative Ethics Committee pursuant to
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Government Code Section 8944, alleging a violation of the
Code of Ethics by a Member of the Legislature.
b) The Senate Committee on Legislative Ethics, alleging any
standard of conduct, as defined by the standing rules of
either house of the Legislature that a Member, officer, or
employee of the Senate violated any standard of conduct as
defined by the standing rules of the Senate.
c) The Assembly Legislative Ethics Committee, alleging that
a Member of the Assembly violated any standard of conduct
as defined by the standing rules of the Assembly.
d) The Assembly Rules Committee, alleging that an employee
of the Assembly violated the Code of Ethics.
e) An ethics ombudsperson designated by either house of the
Legislature to receive information about potential ethical
violations.
3)Authorizes a 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 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)Provides that the identity of all complainants and witnesses
shall be confidential unless given the express permission of
those persons, except that the recipient of a complaint may
make the disclosure to a law enforcement agency that is
conducting a criminal investigation.
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5)Provides that every investigation of a written complaint,
including, but not limited to, all investigative files and
work product relating to such a complaint, shall be
confidential.
6)Clarifies that the confidentiality provisions in 4) and 5),
above do not limit any authority conferred upon the Attorney
General, any other state or federal law enforcement agency, or
any other commission, department or agency of government that
is authorized to investigate the Legislature.
7)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.
8)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.
9)Authorizes an award by the court of punitive damages where the
acts of the offending party are proven to be malicious.
10) Provides that where liability has been established, the
injured party would also be entitled to reasonable attorney's
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fees.
11) Provides that a legislative employee is not required to
file a complaint before bringing an action for civil damages.
12) Declares that it would not diminish the rights,
privileges, or remedies of any employee under any other
federal or state law.
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 statutory references are to the Government Code,
unless otherwise indicated.)
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).)
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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.)
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.)
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.)
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) As part of the Code of Ethics, prohibits a Member of the
Legislature from doing any of the following: (a) having any
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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.)
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 JLEC 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 JLEC, 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
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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 JLEC 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 JLEC 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 JLEC 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 JLEC 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.
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(Fuller v. Bowen (2012) 203 Cal.App.4th 1476, 1479.)
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.
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 do not surrender all of their First
Amendment rights by reason of their employment. 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.
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(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
419.) Therefore, legislative employees likely 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.
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Although the bill gives neither new rights to legislative
employees who make "protected disclosures" about legislative
misconduct, nor 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.
Definition of "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.
Legislative employees have a number of ways to report
legislative misconduct under existing law, all of which are
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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
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
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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
ombudsperson, and requires the establishment of a public hotline
telephone number for purposes of contacting the ombudsperson."
This bill's 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. It
clarifies the appropriate role of 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 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,
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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.
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 protected
disclosure, whereas the CWPA, upon which this bill is modeled,
imposes only civil liability for such an act.
The Penalties in this bill for Retaliation 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
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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.
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.
Confidentiality Provisions Regarding Complainants and
Investigative Files. 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).)
As currently in print, this bill does not include similar
language, requiring that the identity of a complainant to be
kept confidential (except in limited circumstances). As
proposed to be amended, the bill provides similar
confidentiality protections to legislative employee
whistleblowers that are now in place for state employee
whistleblowers.
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Likewise, existing law provides that all investigative files and
work product of the State Auditor about state employee
whistleblowers 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.) As currently in
print, the bill does not ensure the confidentiality of
investigative files. As proposed to be amended, the bill
provides similar confidentiality protections to the
investigative files regarding legislative employee
whistleblowers that are now in place for the investigative files
regarding state employee whistleblowers.
In order to protect the confidentiality of the identity of
complainants and the content of investigative records, the
author has agreed to the following amendments to the newly
enacted Government Code Section 9149.34 (beginning at Page 3;
line 31 of the bill):
9149.34. (a) A legislative employee may 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.
(b) 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.
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(c) Any recipient of a written complaint submitted pursuant
to subdivision (a) shall keep the identity of all complainants
and witnesses confidential unless given the express permission
of those persons, except that the recipient may make the
disclosure to a law enforcement agency that is conducting a
criminal investigation.
(d) All records regarding the investigation of a written
complaint submitted pursuant to subdivision (a), including,
but not limited to, all investigative files and work product
relating to such a complaint, shall be confidential, except
that the recipient may make the disclosure to a law
enforcement agency that is conducting a criminal
investigation.
(e) This section does not limit any authority conferred upon
the Attorney General, any other state or federal law
enforcement agency, or any other commission, department or
agency of government that is authorized to investigate the
Legislature.
The bill does not affect the open nature of JLEC investigations,
on the other hand, that are conducted in a very open and
transparent manner. As soon as a complaint is filed 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).)
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It should be noted that, unlike the CWPA, which requires the
employing state agency to either take adverse employment action
against any employee found by the State Auditor to have engaged
or participated in improper governmental activity, or set forth
in writing its reasons for not taking adverse action and report
on actions it has taken to implement the State Auditor's
recommendations (Sections 8547.4, 8547.7.), this bill does not
specify additional details 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, nor does it specify what due process
rights are available to a person accused of violating the
Legislative Whistleblower Protection Act. The author may want
to add such provisions to the bill in the future.
On the other hand, given 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, as proposed by this bill, may not be necessary.
PRIOR RELATED LEGISLATION: AB 289 (Melendez, 2015) enacts, in a
manner that is identical to this bill as currently in print, 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 JLEC,
alleging that a Member of the Legislature has violated the Code
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of Ethics or any standard of conduct of either house of the
Legislature. AB 289 is currently in the Senate Appropriations
Committee.
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 died on 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
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
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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 then 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
California Civil Liberties Advocacy
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Page 23
Southwest California Legislative Council
Opposition
None on file
Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334