BILL ANALYSIS
AB 1749
Page 1
Date of Hearing: April 20, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1749 (Lowenthal and Strickland) - As Amended: April 5, 2010
SUBJECT : WHISTLEBLOWER PROTECTION: JUDICIAL BRANCH EMPLOYEES
KEY ISSUE : SHOULD JUDICIAL BRANCH EMPLOYEES ENJOY GREATER
PROTECTIONS AGAINST WHISTLEBLOWING?
FISCAL EFFECT : As currently in print this bill is keyed
fiscal.
SYNOPSIS
This bill is sponsored by the authors in response to testimony
they heard last fall at a legislative oversight hearing
regarding the judicial branch. It would extend to judicial
branch employees certain additional rights under the
Whistleblower Protection Act to complain about improper
governmental activities and protections against retaliation for
making those complaints and other protected disclosures. The
bill is supported by labor organizations and the Judicial
Council. No opposition has been received.
SUMMARY : Applies certain whistleblowing protections to the
judicial branch. Specifically, this bill :
1)Includes employees and applicants for employment by the
Supreme Court, a court of appeal, a superior court, or the
Administrative Office of the Courts within the definition of
"employee" for the purposes of the California Whistleblower
Protection Act, except as specified.
2)Authorizes an employee or applicant for employment with those
judiciary entities who files a written complaint alleging
actual or attempted acts of reprisal, retaliation, or similar
prohibited acts for having made a protected disclosure, to
also file a copy of the written complaint with the State
Personnel Board, together with a sworn statement that the
written complaint is true, under penalty of perjury.
3)Requires the State Personnel Board to investigate any claim
filed and make a recommendation regarding the alleged
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retaliation.
4)Provides that any person, other than a judge or justice, who
intentionally engages in acts of reprisal, retaliation, or
similar prohibited acts against an employee or applicant for
employment with those judiciary entities for having made a
protected disclosure, is subject to punishment for a
misdemeanor, and shall be liable in an action for civil
damages brought by the injured party. The bill also would
prohibit an employee of those judiciary entities from using
his or her official authority or influence in violation of
these provisions, and would make that employee liable in an
action for civil damages brought by the injured party.
EXISTING LAW :
1)Pursuant to the Whistleblower Protection Act (WPA), protects
state employees from retaliation by their employer for
reporting fraud, waste, abuse of authority, violation of law,
or activities that create a threat to public health or safety,
or the health or safety of state employees. (Gov. Code Sec.
8547 et seq.)
2)Makes a person who intentionally engages in acts of reprisal
or retaliation in violation of the WPA 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 SPB and the SPB issued, or failed to issue, findings
of its hearings or investigation. (Gov. Code Sec. 8547.8.)
3)Provides a process by which a state employee may file an
optional written complaint alleging adverse employment actions
such as retaliation, reprisal threats, or coercion, with a
supervisor or manager and with the SPB. 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.)
4)Provides that no public or private employer may make, adopt,
or enforce any rule, regulation, or policy preventing an
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employee from disclosing information to a government or law
enforcement agency, where the employee has reasonable cause to
believe that the information discloses a violation of state or
federal statute, or a violation or noncompliance with a state
or federal rule or regulation. (Labor Code section 1102.5.)
5)Likewise prohibits public and private employers from
retaliating against an employee for: disclosing information to
a government or law enforcement agency, where the employee has
reasonable cause to believe that the information discloses a
violation of state or federal statute, or a violation or
noncompliance with a state or federal rule or regulation; (b)
refusing to participate in an activity that would result in a
violation of state or federal statute, or a violation or
noncompliance with a state or federal rule or regulation; or
(c) having exercised his or her rights to do so in any former
employment. (Labor Code section 1102.5.)
6)Provides that any employer who violates this chapter is guilty
of a misdemeanor punishable, in the case of an individual, by
imprisonment in the county jail not to exceed one year or a
fine not to exceed $1,000 or both and, in the case of a
corporation, by a fine not to exceed $5,000, and provides that
in all prosecutions under this chapter, the employer is
responsible for the acts of his managers, officers, agents,
and employees. (Labor Code sections 1103-04.)
COMMENTS : This bill is sponsored by the joint authors, who
explain their rationale as follows:
AB 1749 gives Judicial Branch employees the same level of
protection against retaliation for reporting wrongdoing as
is currently afforded to other employees of the state
bureaucracy.
The approximately 22,000 employees of Judicial Branch of
California government are outside the scope of the existing
Whistleblower Protection Act. AB 1749 would expand the Act
to include these employees, thereby encouraging them to
alert the public when its resources are being misused.
All working Californians enjoy some level of protection
from retaliation if they report a violation of law by their
employer. But that blanket protection granted in the Labor
Code does not cover those who report instances of what is
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generically called waste, fraud or abuse, in the
non-criminal sense.
Because it is in the interest of all Californians to
uncover wasteful or inappropriate activities of public
officials, the state's Whistleblower Protection Act
provides very broad protection so that any employee may
feel safe when calling attention to actions they believe
are not for the public good.
The important functions of the Judicial Branch will cost
Californians about $3.7 billion this year. In recent
years, the branch, like all areas of government, has
sustained significant budget reductions. These reductions
have in some cases reduced the public's access to the court
system. There are significant disagreements over the
setting of budgetary priorities, and in some cases branch
employees have suggested that administrators have not used
resources in the most appropriate manner. Some employees
have suggested making any kind of complaint about the
allocation of resources or other branch administrative
activity runs the risk of reprisal and retaliation. There
are pending court cases around exactly such allegations.
AB 1749 makes no judgment on those allegations, but clearly
articulates the belief that the cause of transparency in
government is best served when government employees feel
most free to call attention to actions they believe are not
in the public interest.
The bill has earned support from the SEIU, which describes it as
one proposed improvement that will help bring the judiciary in
line with other tax payer funded entities with respect to
oversight and accountability. SEIU states, "When employees are
free to report suspected law violations regarding government
operations or misuse of public funds and be free of retaliation,
it only serves the public's best interest and helps to ensure
that our tax dollars are being used wisely and prudently."
The bill is likewise supported by the Judicial Council "because
it will promote transparency and accountability within the
branch in a manner that appropriately acknowledges the integrity
and independence of the judicial branch." The Judicial Council
notes, "The courts and the AOC are entrusted with a significant
share of state taxpayer dollars, and it is appropriate that
judicial branch entities are held accountable for their
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expenditure of those funds in a manner analogous to the other
branches. AB 1749 will promote that result and ensure that
there is no appearance that judicial branch expenditures are
lacking in accountability or transparency." The Judicial
Council also notes, "By creating a unique procedure for
consideration of retaliation complaints, which vests final
decision-making authority for complaints filed with the employer
and the State Personnel Board within the judicial branch, AB
1749 clearly acknowledges that an independent co-equal branch of
government must have independent authority to oversee its
employees."
Existing Whistleblower Protections Are Believed To Be
Inadequate. The authors note, and the Judicial Council
acknowledges, that employees of the judicial branch are
protected by current provisions of the Labor Code prohibiting
both public and private employers from making, adopting or
enforcing any rule, regulation, or policy preventing an employee
from disclosing information to a government or law enforcement
agency, where the employee has reasonable cause to believe that
the information discloses a violation of state or federal
statute, or a violation or noncompliance with a state or federal
rule or regulation, and prohibiting retaliation against an
employee for: disclosing information to a government or law
enforcement agency, where the employee has reasonable cause to
believe that the information discloses a violation of state or
federal statute, or a violation or noncompliance with a state or
federal rule or regulation; refusing to participate in an
activity that would result in a violation of state or federal
statute, or a violation or noncompliance with a state or federal
rule or regulation; or having exercised his or her rights to do
so in any former employment.
Surprisingly to some, however, judicial branch employees are not
believed to be covered by the broader protections of the WPA
that extend to reports of such improper governmental activity as
coercion, conversion, malicious prosecution, misuse of
government property, or willful omission to perform duty,
activity that is economically wasteful, or involves gross
misconduct, incompetency, or inefficiency, and illegal orders to
violate or assist in violating a federal, state, or local law,
rule, or regulation, or an order to work or cause others to work
in conditions outside of their line of duty that would
unreasonably threaten the health or safety of employees or the
public. According to news accounts, in one pending case an AOC
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employee has asserted that WPA does apply to his employment.
However, this appears to be thus far a novel and thus far
unsupported interpretation.
This Bill Would Protect Reports of Wrongdoing Within The
Judicial Branch In Many, But Not All, The Ways In Which The WPA
Covers Other Agencies Of The State . The bill redefines the term
"employee" in the WPA to include persons employed by the Supreme
Court, a court of appeal, a superior court, or the
Administrative Office of the Courts for certain purposes of the
WPA. However, there are some notable differences in the
substantive protections it offers, although some of these may
well be technical drafting issues rather than intentional policy
choices.
Excludes Judges and Justices. Perhaps most significantly, the
bill excludes sitting judges and justices from all of the
criminal and most of the civil liability that attaches to other
judicial branch employees under the bill, and to all executive
branch employees and appointees under existing law. This may be
justified because justices and judges are subject to the broad
authority and disciplinary power of the Commission on Judicial
Performance (CJP), and the bill buttresses that safeguard by
specifically protecting complaints made to the CJP, not just by
judicial branch employees but by all persons covered under the
WPA. However, it may be noted that this exemption covers more
than the adjudicative functions of judicial officers, which are
traditionally immune from liability. The exemption also covers
the administrative functions of judges with respect to personnel
matters, which are not generally not immune from liability, such
as under anti-discrimination and anti-retaliation laws.
Prohibited Interference Appears To Be More Limited. The bill
may also afford judicial branch employees rights that are
somewhat narrower than the rights other employees enjoy under
the WPA in that section 8547.3 of the WPA prohibits all
interference with any of the rights conferred pursuant to the
WPA, while proposed section 8547.13(i) of the bill appears to
prohibit judicial branch employees from interfering with the
"right of that person to disclose to an agency official,
designated for that purpose by the agency, or the State Auditor
matters within the scope of this article." Thus, the bill
appears to exclude interference with the rights afforded to the
Bureau of State Audits and the State Personnel Board (SPB) with
respect to investigation of complaints and recommended
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corrections under sections 8547.4, 8547.5, 8547.6 and 8547.7.
The proper construction of the bill is unclear, however, because
both section 8547.3 and 8547.13(i) appear to apply to judicial
branch employees.
Restrictions On Receipt of Complaints. In addition, the bill
appears to restrict the persons to whom judicial branch
employees may file their internal complaints more rigidly than
for other state employees. The bill specifies that internal
complaints may be filed only with the complaining employee's
supervisor, manager of "other agency officer designated for that
purpose by the agency." The WPA by comparison expressly
authorizes complaints to be received by supervisors, managers
and "the appointing authority." To the extent that complainants
may wish to avoid lodging their charges directly with their
supervisor or manager, as may frequently be the case, the bill
requires them to know who if anyone else in their agency has
been authorized to receive their complaint.
Restrictions on SPB's Authority To Order Relief For Violations.
With respect to investigations by the SPB, the bill affords the
SPB the authority only to make recommendations to court agencies
regarding complaints it investigates, and to make such
recommendations only regarding whether retaliation resulted in
an adverse action regarding the employee and, if so, what steps
should be taken to remedy the situation. This differs from
existing law in two ways. First, the role of the SPB regarding
other employees under the WPA includes the authority to order
relief, including discipline against the state employee that
violated the law. (Government Code section 19683.) Restricting
the authority of the SPB to simply make recommendations is
understood to be intentional on the part of the authors because
it is important to the Judicial Council, which contends that it
is inappropriate to grant an executive branch agency the power
to impose decisions regarding judicial branch employees -
although it might be noted that other executive branch agencies
currently have such authority under existing workplace laws,
including existing anti-retaliation rules enforced by the Labor
Agency and the Fair Employment and Housing Commission.
Secondly, this provision differs in that the SPB has the
authority to make recommendations only "regarding whether
retaliation resulted in an adverse action." The term "adverse
action" has a specific definition in state employment law; it
does not include every punitive act. Under the WPA, by
contrast, the SPB can find that improper retaliation occurred
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regarding other covered employees even if the retaliation does
not take the form of "adverse action." It is not clear whether
there is a policy rationale for this limitation regarding
judicial branch employees.
No Required Time Frames For SPB. In addition, the bill appears
to lack the specified time frames under which the SPB is
currently required to act in response to complaints it receives
from other state agency employees under the WPA. (Compare
Government Code section 19683 for state agency employees with
section 8547.13(c) regarding judicial branch employees.)
Discretionary Discipline For Intentional Violations. Other
employees covered by the WPA face mandatory discipline by the
SPB for intentional acts of retaliation, in addition to being
"subject to" certain potential criminal penalties. (Section
8547.8(b).) Under this bill, however, judicial branch employees
who commit intentional violations are said to be "subject to
discipline," a term that suggests the imposition of discipline
is discretionary, like criminal penalties. (See proposed
section 8547.13(d).)
This Bill Would Extend Not Only Substantive Rights But An
Administrative Processes For Allegations Of Impropriety
Regarding The Judicial Branch . As discussed above, the WPA
currently provides an SPB complaint process for retaliation
against employees and applicants who make a "protected
disclosure" and for any person who uses or attempts to use his
or her official authority or influence 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 by the WPA.
Under this bill, the administrative process of the SPB would be
applied to the judicial branch, albeit with the limitations
noted above. Because the authors are naturally concerned about
the potential fiscal impact of extending the investigative
function of the SPB to the judicial branch, they may wish to
consider whether the costs of this administrative process are
worth the benefits. Information obtained by the Committee
indicates that the SPB process is not especially robust or
valuable. From 2003 to 2008, 55 complaints per year were filed
on average, but 17 of those were rejected. Of the 38 complaints
per year that were accepted, 13 were denied, 19 were still
pending, 2 were withdrawn and 3 were resolved by stipulated
agreement. This record may suggest that administrative outcomes
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are not sufficiently desirable to warrant the additional cost,
keeping in mind that SPB findings and recommendations are only
advisory under the bill, and that the protections established by
the bill may be independently enforced by a private right of
action.
Suggested Technical Amendments . As the bill moves forward the
authors may wish to consider some drafting issues, including:
(1) the use of the term "chapter" in section 8547.13(c) where it
appears the term "section" may be intended; and (2) clarifying
the exemption with respect to section 8547.4 which is said to
apply to court employees only to some extent - perhaps by
subdividing that section and explicitly indicating which of the
subdivisions applies to the judicial branch.
REGISTERED SUPPORT / OPPOSITION :
Support
AFSCME
California Employment Lawyers Association
California Labor Federation
California Official Court Reporters Association
California Protective Parents Association
Center for Judicial Excellence
Glendale City Employees Association
Laborer's Int't Locals 729 and 777
Judicial Council
Orange County Employees Association
Organization of SMUD Employees
Prof. & Tech Engineers, Local 21
San Bernardino Public Employees Association
San Diego Court Employees Association
San Luis Obispo County Employees Association
Santa Rosa City Employees Association
SEIU
Opposition
None on file
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334