BILL ANALYSIS Ó
AB 1788
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Date of Hearing: May 2, 2016
ASSEMBLY COMMITTEE ON RULES
Richard S. Gordon, Chair
AB
1788 (Melendez) - As Amended April 20, 2016
SUBJECT: Legislature: Legislative Employee Whistleblower
Protection Act
SUMMARY: Enacts the Legislative Employee Whistleblower
Protection Act to prohibit retaliation against legislative
employees that make protected disclosures of ethical violations.
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)Authorizes a legislative employee to file a written complaint
with their supervisor or manager, or with any other officer
designated by the house of the Legislature they work for,
alleging actual or attempted acts of reprisal, retaliation,
threats, coercion, or similar improper acts prohibited by this
bill. The complaint must be accompanied by a sworn statement
under penalty of perjury that the contents of the written
complaint are true, and must be filed within one year.
3)Provides that the identity of all complainants and witnesses
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shall be confidential unless given the express permission of
those persons, except if the complaint is requested by a law
enforcement agency that is conducting a criminal
investigation.
4)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; or, intentionally retaliates
against a current or former legislative employee for having
made that 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. The penalties that may be imposed on a
Member of the Legislature are limited to the extent that
Members are immune from liability under the doctrine of
legislative immunity.
5)Authorizes punitive damages if the acts of the offending party
are proven to be malicious.
6)Provides that where liability has been established, the
injured party would also be entitled to reasonable attorney's
fees.
7)Provides that a legislative employee is not required to file a
complaint before bringing an action for civil damages.
8)Declares that the bill's provisions do 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.
2)Defines "improper governmental activity" as an activity by a
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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.
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."
4)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.
5)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.
6)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.
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7)Makes the provisions of the Code of Ethics governing Members
of the Legislature also applicable to any employee of either
house of the Legislature.
8)Requires a complaint to the Joint Legislative Ethics Committee
(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 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.
9)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.
10) 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.
11) 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,
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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.
FISCAL EFFECT: Unknown
COMMENTS:
1)Purpose of the bill : 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 questionable behavior by Members or other
employees of the Legislature.
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.
2)Need for the bill : AB 1788 would protect current and former
legislative employees from retaliation for filing a complaint
with the Joint Legislative Ethics Committee. Under existing
law, these employees already have a number of ways to report
legislative misconduct. Nonetheless, the bill could encourage
legislative employees to make protected disclosures about
legislative misconduct.
3)Prior legislation : AB 1788 is similar to a number of prior
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bills, including: AB 289 (Melendez, 2015), AB 2065 (Melendez,
2014), AB 2256 (Portantino, 2012), and AB 1378 (Portantino,
2012). None of these bills became law.
4)Double referred : AB 1788 was double referred to Judiciary
Committee and Rules Committee. The bill was heard in
Judiciary Committee on April 19th and passed 10-0, with a
recommendation that the bill be placed on consent.
REGISTERED SUPPORT / OPPOSITION:
Support
California Forward Action Fund
Opposition
None on file
Analysis Prepared by:Michael Erke / RLS. / (916) 319-2800