BILL ANALYSIS Ó AB 1788 Page 1 Date of Hearing: May 11, 2016 ASSEMBLY COMMITTEE ON APPROPRIATIONS Lorena Gonzalez, Chair AB 1788 (Melendez) - As Amended April 20, 2016 ----------------------------------------------------------------- |Policy |Judiciary |Vote:|10 - 0 | |Committee: | | | | | | | | | | | | | | |-------------+-------------------------------+-----+-------------| | |Rules | |11 - 0 | | | | | | | | | | | |-------------+-------------------------------+-----+-------------| | | | | | | | | | | | | | | | ----------------------------------------------------------------- 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 Page 2 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 AB 1788 Page 3 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 AB 1788 Page 4 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 AB 1788 Page 5 to AB 2256, was held on this committee's Suspense file. Analysis Prepared by:Chuck Nicol / APPR. / (916) 319-2081