BILL ANALYSIS �
AB 1197
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Date of Hearing: January 10, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1197 (Hill) - As Amended: January 4, 2012
As Proposed to be Amended
SUBJECT : Public Utility Employees: Whistleblowers
KEY ISSUE : Should the Public Utilities Commission be required
to establish a whistleblower protection program?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
Synopsis
This bill requires the California Public Utilities Commission to
establish a whistleblower protection program to protect public
utility employees, former employees, and contractors from
retaliation for disclosing information regarding potential
safety problems to the PUC or any other government agency. This
bill is, in part, a response to the devastating San Bruno fire
of 2010 that was caused by a rupture in a natural gas pipeline
owned and operated by the Pacific Gas & Electronic Company
(PG&E). The bill does not prescribe the specific content of the
program; it simply requires PUC to establish one. The PUC,
which has already been considering the adequacy of existing
whistleblower protections for public utility employees, has
informed the Committee that it supports the bill as proposed to
be amended. The PUC has not, however, submitted a formal letter
of support to the Committee. There is no known opposition to
this bill. The author has agreed to take amendments in this
Committee which will clarify that the bill will apply to former
as well as current employees and independent contractors.
SUMMARY : Requires the Public Utilities Commission (PUC) to
establish a comprehensive whistleblower protection program to
protect public utility employees, former employees, and
contractors from retaliation for bringing information to the PUC
and other public entities regarding, but not limited to, safety
issues.
EXISTING LAW :
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1)Prohibits an employer 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 a reasonable belief that the
information discloses a violation of law. Prohibits an
employer from retaliating against an employee for disclosing
such information or for refusing to participate in unlawful or
non-compliant activity. Subjects an employer who violates
these provisions to civil penalties, as defined. (Labor Code
Section 1102.5.)
2)Prohibits a public employee, or any individual appointed by
the Governor or employed or holding office in a state agency,
as defined, from directly or indirectly using or attempting to
use his or her official authority to intimidate, threaten,
coerce or command any person for the purpose of interfering
with that person's right to disclose improper governmental
activity. Defines "improper governmental activity" to include
any activity that is unlawful, or that is economically
wasteful, or involves gross misconduct, incompetency, or
inefficiency. Sets forth an administrative procedure by which
the State Auditor may administer, investigate, report, and
enforce violations arising under this provision. (Government
Code Sections 8547.2 to 8547.7.)
3)Establishes an administrative procedure by which a state
employee or applicant for state employment may file a
complaint alleging a violation of the above provisions.
Subjects a person who commits such a violation to a fine not
to exceed $10,000 or imprisonment in the county jail for a
period not to exceed one year, in addition to any actual or
punitive damages that might be sought in an action brought by
an injured party. (Government Code Section 8547.8.)
4)Prohibits a public employee, or any individual appointed by
the Governor or employed or holding office in a public agency,
as defined, from directly or indirectly using or attempting to
use official authority to intimidate, threaten, coerce or
command any person for the purpose of interfering with that
person's right to disclose improper governmental activities to
an investigating committee of the Legislature. (Government
Code Sections 9149.21 to 9149.23.)
5)Establishes the California Public Utilities Commission and
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empowers it to regulate privately-owned public utilities in
California. Specifies that the Legislature may prescribe that
additional classes of private corporations or other persons
are public utilities. (Article XII of the California
Constitution; Public Utilities Code Sections 301 et seq.)
COMMENTS : According to the author, this bill is a response to
the tragedy that occurred when a natural gas pipeline owned and
operated by Pacific Gas & Electric Company (PG&E) ruptured in
San Bruno, California, in September of 2010. The resulting fire
destroyed many homes and took the lives of eight persons. In
response to this tragedy, the California Public Utilities
Commission (PUC) undertook a reexamination of its pipeline
safety regulations. Among the many possible rules changes
considered by a recent PUC memorandum is the issue of
whistleblower protection for public utility employees who wish
to disclose safety problems without fear of retaliation. The
PUC memorandum does not reach any conclusion on this issue, but
rather leaves it as an open question that needs further analysis
consideration. �See California Public Utilities Commission,
Order Instituting Rulemaking on the Commission's Own Motion to
Adopt New Safety and Reliability Regulations for Natural Gas
Transmission and Distribution Pipelines and Related Rulemaking
Mechanisms. (February 25, 2011, pp. 14-15.)]
This bill would require the PUC to establish a comprehensive
whistleblower protection program for public utility employees
(as well as former employees and independent contractors) who
disclose information to the PUC or "other public entities,"
including the whistleblower hotline without expressly
prescribing the exact content of the program or the exact
procedures by which disclosures will be managed, investigated,
or enforced. Instead, this bill calls for the establishment of
a "comprehensive program" while apparently leaving the details
to be determined by the PUC. Although the bill expressly
references disclosures of information relating to safety issues,
it makes clear that the program need not be limited to
protecting disclosure of safety-related information. However,
it should be stressed that existing law, as noted below, would
already protect public utility employees who report unlawful
activity committed by their employers.
Relationship to Existing Law : Existing law establishes two
statutory frameworks for protecting employees who disclose
information on employer wrongdoing to government entities. The
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California Whistleblower Protection Act prohibits office holders
and employees of state agencies from using their position to
interfere with the right of any other person, including a public
employee, from disclosing information relating to various forms
of governmental misconduct. In addition, Section 1102.5 of the
Labor Code prohibits private employers from retaliating against
private employees who report an employer's unlawful activity or
who refuse to participate in unlawful activity. Neither of
these statutes completely addresses the issue of public utility
employees reporting potential safety problems. The California
Whistleblower Protection Act covers a broad range of misconduct,
but it does not apply to privately-owned public utilities. The
Labor Code provisions apply to public utility employees, but
they only cover disclosures relating to violations of law or
regulation; therefore, they would not necessarily protect a
disclosure of a safety problem that did not rise to the level of
a violation of law or regulation.
Proposed Author's Amendment: In order to clarify that the
whistleblower protection will apply to formers employees and
independent contractors, and to make other clarifying changes,
the author wishes to take the following amendments in this
Committee:
- On page 3 line 9 after employees insert:
former employees, and third party contractors and subcontractors
- On page 3 line 11 delete "unreported" and insert:
, but not limited to,
ARGUMENT IN SUPPORT : According to the author, public utilities,
"especially electric and gas, can be extremely dangerous and the
delivery of these essential services must be done with the
utmost care. Robust whistleblower protections will help ensure
that utilities are responsible with ratepayer money and that
they continue to push themselves to provide safe and reliable
service to residents of the state."
REGISTERED SUPPORT / OPPOSITION :
Support
California Public Utilities Commission
AB 1197
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Opposition
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334