BILL ANALYSIS                                                                                                                                                                                                    Ó



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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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          Southwest California Legislative Council




          Opposition


          None on file




          Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334