BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 1749|
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CONSENT
Bill No: AB 1749
Author: Bonnie Lowenthal (D) and Strickland (R), et al
Amended: 4/27/10 in Assembly
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-0, 6/29/10
AYES: Corbett, Harman, Hancock, Leno
NO VOTE RECORDED: Walters
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 70-0, 5/24/10 - See last page for vote
SUBJECT : California Whistleblower Protection Act:
Administrative
Office of the Courts
SOURCE : Author
DIGEST : This bill expands existing whistleblower
protections under the California Whistleblower Protection
Act to include employees of the judicial branch.
ANALYSIS : Existing law, the California Whistleblower
Protection Act (CWPA), 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. (Section 8547 et seq. of
the Government Code [GOV])
CONTINUED
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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 SPB issued, or failed to issue,
findings of its hearings or investigation. (GOV Section
8547.12)
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 SPB. Existing law
requires 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 Section
19683)
Existing law provides that no public or private employer
may make, adopt, or enforce 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. (Section 1102.5 of the Labor Code [LAB])
Existing law likewise prohibits public and private
employers from retaliating against an employee for (1)
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,
(2) 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 (3) having exercised his/her rights to do so
in any former employment. (LAB Section 1102.5)
Existing law provides that any employer who violates these
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provisions 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. (LAB
Sections 1103-04)
This bill includes a person employed 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 CWPA, except as specified.
This bill 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 SPB, together with a sworn
statement that the written complaint is true, under penalty
of perjury. This bill requires SPB to investigate any
claim filed and make a recommendation regarding the alleged
retaliation.
This bill provides that any person, except as specified,
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. This bill prohibits
an employee of those judiciary entities from using his/her
official authority or influence in violation of these
provisions, and makes that employee liable, except as
specified, in an action for civil damages brought by the
injured party.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 8/2/10)
American Federation of State, County and Municipal
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Employees, AFL-CIO
California Labor Federation
California Official Court Reporters Association
California Protective Parents Association
Center for Judicial Excellence
Glendale City Employees Association
Laborers' International Union of North America, Locals 777
and 792
Judicial Council of California
Orange County Employees Association
Organization of SMUD Employees
Professional and Technical Engineers, IFPTE Local 21
San Bernardino Public Employees Association
San Diego County Court Employees Association
San Luis Obispo County Employees Association
Santa Rosa City Employees Association
Service Employees International Union
ARGUMENTS IN SUPPORT : The joint authors state:
"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 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.
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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."
Further, the Judicial Council of California writes in
support: "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 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? 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."
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill
Berryhill, Tom Berryhill, Blakeslee, Block, Blumenfield,
Bradford, Brownley, Buchanan, Caballero, Charles
Calderon, Carter, Chesbro, Conway, Cook, Coto, Davis, De
La Torre, De Leon, DeVore, Emmerson, Eng, Feuer,
Fletcher, Fong, Fuentes, Fuller, Furutani, Gaines,
Galgiani, Garrick, Gilmore, Hagman, Harkey, Hayashi,
Hill, Huber, Huffman, Jeffries, Jones, Lieu, Logue,
Bonnie Lowenthal, Ma, Mendoza, Miller, Monning, Nestande,
Niello, Nielsen, V. Manuel Perez, Portantino, Ruskin,
Salas, Silva, Skinner, Smyth, Solorio, Audra Strickland,
Swanson, Torlakson, Torres, Torrico, Tran, Yamada, John
A. Perez
NO VOTE RECORDED: Bass, Evans, Hall, Hernandez, Knight,
Nava, Norby, Saldana, Villines, Vacancy
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RJG:mw 8/2/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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