BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 1788 (Melendez)
Version: April 20, 2016
Hearing Date: June 28, 2016
Fiscal: Yes
Urgency: No
ME
SUBJECT
Legislature: Legislative Employee Whistleblower Protection Act
DESCRIPTION
This bill would enact the Legislative Employee Whistleblower
Protection Act and prohibit a Member of the Legislature or
legislative employee from directly or indirectly using or
attempting to use that person's official authority or influence
to intimidate, threaten, coerce, command, a legislative employee
for the purpose of interfering with the right of that employee
to make a protected disclosure, as defined. This bill would
also prohibit retaliation against that employee for making a
whistleblower complaint and provide a right of action against a
violating Member, subject to the doctrine of legislative
immunity.
BACKGROUND
The California Whistleblower Protection Act (CWPA) prohibits
state employees and justices and judges from using or attempting
to use their official authority or influence to interfere with
the rights of an employee to make a good faith communication
that discloses information which may evidence an improper
governmental activity, or any condition that may significantly
threaten the health or safety of employees or the public. The
CWPA also provides a process by which the employee who has made
a protected disclosure may file a written complaint alleging
adverse employment actions such as retaliation, reprisal
threats, or coercion, with a supervisor or manager and with the
State Personnel Board. The CWPA specifies that justices and
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judges are liable in an action for damages brought against him
or her by the injured party, except to the extent the judge or
justice is immune from liability under the doctrine of judicial
immunity.
Similarly, this bill would provide whistleblower protections for
employees and Members of the Legislature and authorize the
whistleblower to submit a complaint with either house of the
Legislature pursuant to its rules alleging a violation of the
house ethics rules or retaliatory conduct by the Member for
attempting to file the complaint. This bill would also provide
a right of action for a legislative employee who has made a
protected disclosure and suffered an adverse action for making
that disclosure. This bill is substantially similar to AB 289
(Melendez, 2015) and AB 2065 (Melendez, 2014), which both passed
this Committee on a vote of 7-0 but were held under submission
in the Senate Appropriations Committee.
CHANGES TO EXISTING LAW
Existing law , the California Whistleblower Protection Act
(CWPA), sets forth the circumstances and procedures under which
a state employee, as defined, may report improper governmental
activities, as defined, or make protected disclosures, as
defined, to the State Auditor, and prohibits retaliation or
reprisal against a state employee for these acts. (Gov. Code
Sec. 8547 et seq.)
Existing law defines "employee" to mean a current or former
employee who was appointed by the Governor, employed or holding
office in a state agency, an employee of the California State
University, appointed by the Legislature to a state board or
commission, or employed by the Supreme Court, a court of appeal,
a superior court, or the Administrative Office of the Courts.
(Gov. Code Sec. 8547.2(a).)
Existing law excludes from that definition of "employee" a
Member or employee of the Legislature. (Gov. Code Sec.
8547.2(a).)
Existing law defines "improper governmental activity" to mean 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
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that activity is within the scope of his or her employment, and
that:
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;
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
is economically wasteful, involves gross misconduct,
incompetency, or inefficiency. (Gov. Code Sec. 8547.2(c).)
Existing law defines "state agency" to include the University of
California, as specified, and the California State University,
as specified, the Supreme Court, the courts of appeal, the
superior courts, and the Administrative Office of the Courts, as
specified, in the same manner as they apply to a state agency.
(Gov. Code Sec. 8547.2(f).)
Existing law prohibits an employee 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 under the CWPA. (Gov. Code Sec.
8547.3(a).)
Existing law provides that any employee who violates the above
provision may be liable in an action for civil damages brought
against the employee by the offended party. (Gov. Code Sec.
8547.3(c).)
Existing law 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. (Gov. Code
Sec. 8547.8.)
Existing law specifies that a justice or judge who intentionally
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engages in acts of reprisal, retaliation, threats, coercion, or
similar acts against an employee or applicant for employment for
having made a protected disclosure is subject to a $10,000 fine
and imprisonment, and may be liable in an action for damages
brought against him or her by the injured party, except to the
extent the judge or justice is immune from liability under the
doctrine of judicial immunity. A person injured by an employee
of the Supreme Court, a court of appeal, a superior court, or
the Administrative Office of the Courts is not required to file
an internal complaint before bringing an action for damages.
(Gov. Code Sec. 8847.13.)
Existing law provides that in any civil action or administrative
proceeding, once it has been demonstrated by a preponderance of
evidence that an activity protected under the CWPA was a
contributing factor in the alleged retaliation against a former,
current, or prospective employee, the burden of proof shall be
on the supervisor, manager, or appointing power to demonstrate
by clear and convincing evidence that the alleged action would
have occurred for legitimate, independent reasons even if the
employee had not engaged in protected disclosures or refused an
illegal order. If the supervisor, manager, or appointing power
fails to meet this burden of proof in an adverse action against
the employee in any administrative review, challenge, or
adjudication in which retaliation has been demonstrated to be a
contributing factor, the employee shall have a complete
affirmative defense in the adverse action. (Gov. Code Secs.
8547.8(e), 8547.10(e), 8547.13(g).)
Existing law provides a process by which a state employee may
file a written complaint alleging adverse employment actions
such as retaliation, reprisal threats, or coercion, with a
supervisor or manager and with the SPB. (Gov. Code Secs.
8547.8, 19683.) Existing law requires the SPB to initiate an
investigation or a proceeding within 10 working days of
submission of a written complaint, and to complete findings of
the investigation or hearing within 60 working days thereafter.
(Gov. Code Sec. 19683.)
Existing law requires the State Auditor to create a means for
the submission of allegations of improper governmental activity,
and upon receiving specific information that any employee or
state agency has engaged in an improper governmental activity,
the State Auditor is authorized to conduct an investigation of
the matter. (Gov. Code Sec. 8547.5.)
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Existing law prescribes a code of ethics for the Legislature.
(Gov. Code Sec. 8920 et seq.) The code of ethics is enforced by
the Joint Legislative Ethics Committee, which has the power to
investigate complaints and make findings concerning alleged
ethics violations of Members of the Legislature. (Gov. Code
Sec. 8940 et seq.)
Existing law authorizes any person to file with the Joint
Legislative Ethics Committee a complaint, as specified, alleging
an ethics violation of a Member of the Legislature. (Gov. Code
Sec. 8944.) That complaint has a statute of limitations of 12
months from the date of the alleged violation. (Gov. Code Sec.
8944(e).)
This bill would enact the Legislative Employee Whistleblower
Protection Act (LEWPA) and 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 intimidate,
threaten, coerce, or command, or attempt to intimidate,
threaten, coerce, or command, a legislative employee for the
purpose of interfering with the right of the legislative
employee to make a protected disclosure.
This bill would provide the following definitions under LEWPA:
"legislative employee" means an individual, other than a
Member of either house of the Legislature, who is currently
employed by either house of the Legislature;
"protected disclosure" means the filing of a complaint with
any of the following:
o the Joint Legislative Ethics Committee, as specified,
alleging a violation by a member of the Legislature;
o the Senate Committee on Legislative Ethics, alleging
that a Member, officer, or employee of the Senate violated
any standard of conduct, as defined by the standing rules
of the Senate;
o 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;
o the Assembly Rules Committee, alleging that an employee
of the Assembly violated the legislative code of ethics; or
o an ethics ombudsperson designated by either house of the
Legislature to receive information about potential ethical
violations; and
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"use of official authority or influence" includes 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 appointment, promotion, transfer,
assignment, performance evaluation, suspension, or other
disciplinary action.
This bill would provide that, except to the extent that a Member
is immune from liability under the doctrine of legislative
immunity, a person who directly or indirectly uses or attempts
to use his or her official authority or influence to intimidate,
threaten, coerce, or command, or attempts to intimidate,
threaten, coerce, or command, a legislative employee for the
purpose of interfering with the right of the legislative
employee to make a protected disclosure, is subject to a fine of
up to $10,000 and up to a year in county jail, and is liable in
a civil action for damages brought by a legislative employee.
This bill would not authorize an individual to disclose
information otherwise prohibited by or under law.
This bill would not prevent a supervisor, manager, or other
officer of the Legislature from taking, directing others to
take, recommending, or approving any personnel action or from
taking or failing to take a personnel action with respect to any
legislative employee if the supervisor, manager, or other
officer reasonably believes any action or inaction is justified
on the basis of evidence separate from the fact that the person
has made a protected disclosure.
This bill would authorize 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.
This bill would require that a recipient of a written complaint
shall keep the identity of complainants and witnesses
confidential unless expressly authorized by those persons to
reveal them, except if requested by a law enforcement agency
conducting a criminal investigation.
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This bill would require that records relating to an
investigation conducted pursuant to this Act, including
investigative files and work product, are confidential, except
if requested by a law enforcement agency conducting a criminal
investigation.
This bill would require that complaint to be filed within one
year of the most recent improper act complained about.
This bill would provide that, except to the extent that a Member
is immune from liability under the doctrine of legislative
immunity, a person who intentionally engages in acts of
reprisal, retaliation, threats, coercion, or similar acts
against a legislative employee, which includes a former
Legislative employee (if the complaint is filed within one year
of the most recent improper act complained about), for having
made a protected disclosure, is subject to a fine of up to
$10,000 and up to a year in county jail, and is liable in an
action for damages brought against him or her by the legislative
employee.
This bill would provide that in any civil action, once it has
been demonstrated by a preponderance of evidence that an
activity protected by this bill was a contributing factor in the
alleged retaliation against a legislative employee, the burden
of proof is on the offending party to demonstrate by clear and
convincing evidence that the alleged action would have occurred
for legitimate, independent reasons even if the legislative
employee had not made a protected disclosure.
This bill would authorize an award by the court of punitive
damages where the acts of the offending party are proven to be
malicious.
This bill would provide that where liability has been
established, the injured party is also entitled to reasonable
attorney's fees.
This bill would not require a legislative employee to file a
complaint before bringing an action for civil damages.
This bill would declare that it would not diminish the rights,
privileges, or remedies of any employee under any other federal
or state law.
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This bill would provide that it does not limit the authority
conferred upon the Attorney General, any state or federal law
enforcement agency, or any other commission, department, or
agency authorized to investigate the Legislature.
COMMENT
1. Stated need for the bill
The author writes:
[UPDATE for AB 1788] Currently, employees of the Legislature
are not protected under the California Whistleblower
Protection Act. This lack of protection discourages
legislative employees from reporting information 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.
Recent events involving members of the Legislature have
renewed calls for greater oversight and accountability. Given
staff's close proximity to members of the Legislature, they
are in a unique position to help provide this improved
accountability. This cannot be expected, however, if they are
not provided protection from retaliation.
AB 1788 would provide the same protection other state workers
receive under the California Whistleblower Protection Act to
legislative employees by establishing the Legislative Employee
Whistleblower Protection Act.
California Forward Action Fund, in support, writes:
Whistleblower protection has provided judicial and executive
branch employees the means and protections to report abuse and
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waste of taxpayer money. Unfortunately, these same means and
protections are not available to legislative employees who may
have first-hand knowledge of abuse happening inside the
Capitol and within California government. By providing
whistleblower protection to legislative staff, the Legislature
will demonstrate that it respects and honors its employees and
recognizes their service to the public, and that lawmakers are
serious about preventing and detecting violations of the law
within the instiution.
While such instances may be rare, without such protections,
employees can be conflicted about their obligation to report
possible violations, their loyalty to members or the
institution, and fear for their own careers and well-being.
This law - these protections - would send a clear message to
public servants and the public that the Legislature expects
ethical behavior of its employees, including elected members.
It says the Legislature prioritizes transparency and
preserving the public trust above all.
2. Providing whistleblower protections to employees and Members
of the Legislature
This bill would enact the Legislative Employee Whistleblower
Protection Act and mirror the whistleblower protections provided
to state and judicial employees, as described below.
a. Use of official authority or influence to interfere with
disclosures
Existing law provides that an employee may not directly or
indirectly attempt to use the official authority or influence
of the employee for the purposes of intimidating, threatening,
coercing, or commanding any person for the purpose of
interfering with the rights conferred by the CWPA. (Gov. Code
Sec. 8547.3.) An employee who violates these provisions may
be liable in an action for civil damages brought against the
employee by the offended party. (Id.) This bill would also
provide these protections to employees and Members of the
Legislature.
Existing law also prohibits retaliatory actions against a
state or judicial employee who has submitted a protected
disclosure and authorizes that employee to file a civil
action. (Gov. Code Secs. 8547.8(c), 8547.13(e).) Similarly,
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this bill would also provide a civil action for a legislative
employee who is retaliated against after making a protected
disclosure.
b. Penalties and liability
Pursuant to this bill, a legislative employee or Member who is
found to have retaliated, threatened, or engaged in other
similar acts against a legislative employee for having made a
protected disclosure would be subject to a fine not to exceed
$10,000 and imprisonment in a county jail for up to one year.
Further, the Member or employee found to be in violation of
this bill would also be subject to civil liability in an
action for damages brought against him or her by the injured
party. Punitive damages, as well as attorney's fees would
also be available to the injured party. As previously stated,
these penalties and liabilities are substantively similar to
those currently prescribed by the CWPA. However, the
penalties and civil liability would only apply to Members of
the Legislature to the extent that they are not immune from
liability under the doctrine of legislative immunity.
The doctrine of legislative immunity, established under both
federal and California law, provides that legislators may not
be called to court to defend their legislative activities.
(See Steiner v. Superior Court (1996) 50 Cal.App.4th 1771,
1784-85 ("legal action may not be taken against [legislators]
for their activities involving planning or enacting
legislation"); Dombrowski v. Eastland (1967) 387 U.S. 82, 85
("legislators engaged in the sphere of legitimate legislative
activity, should be protected not only from the consequences
of litigation's results but also from the burden of defending
themselves").) Mirroring the immunity included in the CWPA
for judicial officers, Members would not lose the legislative
immunity they traditionally enjoy for legislative functions,
but could potentially be subject to penalties and liability
for violations committed in the course of their administrative
duties.
c. Same evidentiary requirements as for other employees
protected by the CWPA
Existing law provides that in any civil action, once it has
been demonstrated by a preponderance of evidence that an
activity protected under the CWPA was a contributing factor in
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the alleged retaliation against a former, current, or
prospective employee, the burden of proof shall be on the
supervisor, manager, or other officer to demonstrate by clear
and convincing evidence that the alleged action would have
occurred for legitimate, independent reasons even if the
employee had not engaged in protected disclosures or refused
an illegal order. (Gov. Code Secs. 8547.8(e), 8547.10(e),
8547.12(e), 8547.13(g).) This bill continues these
evidentiary burden shifting provisions.
It should be noted that, in comparison, state, University of
California, California State University, and judicial
employees, if the supervisor, manager, or appointing power
fails to meet this burden of proof in an adverse action
against the employee in any administrative review, challenge,
or adjudication in which retaliation has been demonstrated to
be a contributing factor, the employee has a complete
affirmative defense in the adverse action.
3. Complaints to be filed with house of the Legislature
The CWPA authorizes the State Auditor to receive complaints from
state employees and members of the public who wish to report an
improper governmental activity. (Gov. Code Sec. 8547.4.) An
"improper governmental activity" is defined, as any action that
violates the law, is economically wasteful, or involves gross
misconduct, incompetency, or inefficiency. (Gov. Code Sec.
8547.2.) The complaints received by the State Auditor shall
remain confidential, and the identity of the complainant may not
be revealed without the permission of the complainant, except to
an appropriate law enforcement agency conducting a criminal
investigation.<1> (Gov. Code Sec. 8547.5.) If, after
investigating, the State Auditor finds that an employee may have
engaged or participated in improper governmental activities, the
State Auditor must prepare an investigative report and send a
copy to the employee's appointing power. (Gov. Code Sec.
8547.4.) If appropriate, the State Auditor may also
confidentially report the matter to the Attorney General, the
---------------------------
<1> This bill contains a similar provision of confidentiality
for legislative employees as contained in the CWPA whereby a
recipient of a written complaint by a legislative employee must
keep the identity of complainants and witnesses confidential
unless expressly authorized by those persons to reveal them,
except if requested by a law enforcement agency conducting a
criminal investigation.
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Legislature, or any other entity having jurisdiction over the
matter, or issue a public report on the matter, keeping
confidential the identities of the individuals involved. (Gov.
Code Sec. 8547.7.) The State Auditor does not have enforcement
powers and cannot order a department or official to take any
action. (Id.)
Within 60 days of receiving the State Auditor's investigative
report, an appointing power must either serve a notice of
adverse action upon the employee or set forth in writing its
reasons for not taking adverse action. (Gov. Code Sec. 8547.4.)
The appointing power must submit its written reasons for not
taking adverse action to the State Auditor and State Personnel
Board (SPB), and the SPB may take adverse action as specified.
An employee who is served with a notice of adverse action may
appeal to the SPB. (Id.)
Although the CWPA authorizes a state or judicial branch employee
to submit a copy of the employee complaint to the SPB, this bill
would instead follow the complaint procedures for the University
of California and California State University employees, which
do not authorize those employees to submit a complaint copy to
the SPB. Instead, this bill would authorize the legislative
employee to file with the employee's supervisor or manager, or
with any other officer designated by the house of the
Legislature by which he or she is employed, a written complaint
alleging retaliation for having made a protected disclosure.
Presumably, this bill excludes SPB involvement because of
concerns that it may be inappropriate to grant an executive
branch agency authority over personnel decisions in a separate
branch of government.
It is important to note that this bill provides that a
legislative employee "whistleblower" is protected from
retaliation for making a protected disclosure to one of five
different entities. For ethics violation allegations against a
Member of the Legislature, a legislative employee may file a
complaint with the Joint Legislative Ethics Committee, which has
authority to investigate these complaints pursuant to Government
Code Section 8940 et seq. and Senate and Assembly Joint Rule 45.
A complaint against an Assembly employee alleging ethics
violations may be filed with the Assembly Rules Committee.
Also, an ethics ombudsperson designated by either house of the
Legislature may receive information about potential ethical
violations.
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For allegations against a Member, officer, or employee of the
Senate alleging a violation of a standard of conduct, a
complaint may be filed with the Senate Committee on Legislative
Ethics pursuant to Senate Rule 12.3(b)(5). Allegations against
a Member of the Assembly alleging a violation of a standard of
conduct, a complaint may be filed with the Assembly Legislative
Ethics Committee pursuant to Assembly Rule 22.5.
Support : California Forward Action Fund; Southwest California
Legislative Council
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
AB 289 (Melendez 2015) See Background.
AB 2065 (Melendez, 2014) See Background.
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) is similar to this bill 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, Chapter 160, Statutes of
2010) provided judicial branch employees with CWPA protections.
SB 650 (Yee, Chapter 104, Statutes of 2010) revised the CWPA so
that complaints filed by University of California employees are
treated the same as those filed by California State University
employees.
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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
were included in AB 567 (Villines, Chapter 452, Statutes of
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 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, Chapter 452, Statutes of 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.
Prior Vote :
Assembly Floor (Ayes 76, Noes 0)
Assembly Appropriations Committee (Ayes 20, Noes 0)
Assembly Rules Committee (Ayes 11, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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