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