BILL ANALYSIS Ó AB 1788 Page 1 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 AB 1788 Page 2 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. AB 1788 Page 3 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 AB 1788 Page 4 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. AB 1788 Page 5 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 AB 1788 Page 6 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).) AB 1788 Page 7 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.) AB 1788 Page 8 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 AB 1788 Page 9 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 AB 1788 Page 10 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. AB 1788 Page 11 (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. AB 1788 Page 12 (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. AB 1788 Page 13 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 AB 1788 Page 14 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 AB 1788 Page 15 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, AB 1788 Page 16 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 AB 1788 Page 17 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. AB 1788 Page 18 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. AB 1788 Page 19 (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).) AB 1788 Page 20 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 AB 1788 Page 21 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 AB 1788 Page 22 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 AB 1788 Page 23 Southwest California Legislative Council Opposition None on file Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334