BILL ANALYSIS Ó
AB 1788
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Date of Hearing: May 11, 2016
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez, Chair
AB
1788 (Melendez) - As Amended April 20, 2016
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Urgency: No State Mandated Local Program: YesReimbursable:
No
SUMMARY:
This bill enacts the Legislative Whistleblower Protection Act to
protect legislative staff from retaliation in response to filing
an ethics complaint. Specifically, this bill:
AB 1788
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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,"
defined as a complaint filed, as applicable, with the Joint
Legislative Ethics Committee, the Assembly or Senate Ethics
Committees, respectively, the Assembly Rules Committee, or an
ethics ombudsperson designated by either house of the
Legislature.
2)Authorizes a legislative employee to file a written complaint
with either house of the Legislature pursuant to its rules
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.
3)Stipulates that (a) the recipient of a complaint must keep the
identity of the complainants and witnesses confidential unless
otherwise authorized by those persons, and (b) that records
related to a resultant investigation are confidential unless
either the identities or the records are requested by a law
enforcement as part of 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, 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
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legislative immunity.
5)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.
6)Stipulates that, for purposes of (4) and (5), "legislative
employee" includes a former employee of the Legislature if the
complaint is filed within one year of the most recent improper
act.
FISCAL EFFECT:
1)Potential nonreimbursable costs for incarceration, offset to
some extent by fine revenues.
2)No additional costs to the Legislature, as the bill is
consistent with existing legislative processes for addressing
ethics complaints.
COMMENTS:
1)Purpose. This bill is similar to recent proposal-and is almost
identical to AB 289 (Melendez) of 2015-that have sought to
protect from retaliation legislative employees who make
disclosures about misconduct of other legislative employees
and Members of the Legislature. (AB 289 was held on Suspense
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in Senate Appropriations.) Unlike the past proposals, which
would have added legislative employees to the California
Whistleblower Protection Act (CWPA), which governs employees
of the executive and judicial branches, AB 289 and this bill
enact a separate and more limited provision. The effect would
be to protect current and former legislative employees from
retaliation for filing a complaint with the Joint Legislative
Ethics Committee, 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. 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.
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.
2)Prior Legislation. In addition to AB 289, AB 2065 (Melendez)
of 2014, as introduced and passed by the Assembly, would have
added legislative employees to the CWPA. The bill, which was
amended in the Senate into substantially the same form as the
introduced version of AB 289 and this bill, was held on
Suspense in Senate Appropriations.
AB 2256 (Portantino) of 2012, which provided protections for
legislative employees and Members under the CWPA, failed
passage in Assembly Judiciary.
AB 1378 (Portantino) of 2012, which was substantially similar
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to AB 2256, was held on this committee's Suspense file.
Analysis Prepared by:Chuck Nicol / APPR. / (916)
319-2081