BILL NUMBER: AB 1378 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JANUARY 4, 2012
INTRODUCED BY Assembly Member Portantino
FEBRUARY 18, 2011
An act to add and repeal Sections 12599.5 and 12635.5 of
the Health and Safety Code, relating to fireworks, and making an
appropriation therefor. An act to amend Sections
8547.2 and 8547.3 of, and to add Section 8547.14 to, the Government
Code, relating to the Legislature.
LEGISLATIVE COUNSEL'S DIGEST
AB 1378, as amended, Portantino. Fireworks: sale:
training. California Whistleblower Protection Act:
Legislature: employees.
The California Whistleblower Protection Act prohibits an employee,
as defined to include specified employees in the executive and
judicial branches of state government, from using his or her official
authority or influence for the purpose of intimidating, threatening,
coercing, or commanding any person for the purpose of interfering
with his or her right to make a protected disclosure of improper
governmental activity. The act requires the State Auditor to
investigate and report on improper governmental activities, as
specified. The act authorizes an employee or applicant for employment
who files a written complaint alleging reprisal, retaliation, or
similar prohibited acts to also file a copy of the written complaint
with the State Personnel Board, together with a sworn statement that
the complaint is true, under penalty of perjury. The act provides
that any person who intentionally engages in acts of reprisal,
retaliation, or similar prohibited acts against a state employee or
applicant for state employment 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 would make these provisions of the act applicable to the
Legislature, except for procedures regarding notices of adverse
action and the State Personnel Board and except that penalties would
not apply to the extent that a Member of the Legislature is immune
from liability under the doctrine of legislative immunity. The bill
would authorize an employee of the Legislature or an applicant for
employment with the Legislature to file a written complaint with his
or her supervisor, manager, or other officer designated by the
Committee on Rules of the Assembly or Senate, as applicable, alleging
improper acts, together with a sworn statement that the complaint is
true, under penalty of perjury, within one year of the most recent
improper act complained about. The bill would require the Committees
on Rules of the Assembly and Senate to each designate an officer to
receive these written complaints. By expanding the scope of crimes
under the act, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
(1) Existing law authorizes the retail sale of safe and sane
fireworks from June 28 to July 6 annually pursuant to a license
issued by the State Fire Marshal, unless otherwise prohibited or
regulated by law or ordinance.
This bill would authorize, until January 2, 2018, the sale of
certified safe and sane fireworks from 9 a.m. December 26 through
January 1 pursuant to a license issued by the State Fire Marshal, if
authorized by a city, county, or city and county ordinance or
resolution that may also restrict the hours of use of those
fireworks. Since a violation of this provision or other existing
related provisions in connection with the sale of those fireworks
would be a misdemeanor, the bill would impose a state-mandated local
program by creating new crimes.
(2) Existing law authorizes the State Fire Marshal, his or her
salaried deputies, or any chief of a fire department, or his or her
authorized representatives, any fire protection agency, or any other
public agency authorized by statute to enforce the State Fire Marshal'
s regulations, to seize any fireworks described in specified
provisions and to charge any person, firm, or corporation, whose
fireworks are seized, an amount that is sufficient to cover the cost
of transporting, storing, and handling the seized fireworks. Existing
law requires the State Fire Marshal to dispose of seized dangerous
fireworks, as specified.
Existing law also requires the State Fire Marshal to establish and
collect the original and annual renewal fees for fireworks licenses
that are required by applicable laws.
This bill would require, until January 1, 2018, the State Fire
Marshal to establish and collect an additional fee on permits issued
to licensees in an amount necessary to enforce applicable laws with
respect to training and education regarding dangerous fireworks. The
fees would be deposited in the State Fire Marshal Dangerous Fireworks
Training and Education Fund, which the bill would establish. Moneys
in this fund would be continuously appropriated without regard to
fiscal years to the State Fire Marshal for the purpose of training
local fire and law enforcement agencies, as specified.
(3) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: yes no
. Fiscal committee: yes. State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 8547.2 of the
Government Code is amended to read:
8547.2. For the purposes of this article, the following terms
have the following meanings:
(a) (1) "Employee" means an
any of the following:
(A) An individual appointed by
the Governor , or .
(B) An individual employed or
holding office in a state agency as defined by Section 11000,
including, for purposes of Sections 8547.3 to 8547.7, inclusive, an
employee of the California State University , or an
.
(C) A Member or employee of the Legislature for purposes of
Sections 8547.3 to 8547.7, inclusive, except for those provisions of
Section 8547.4 concerning notice of adverse action and the State
Personnel Board.
(D) An individual appointed by
the Legislature to a state board or commission and who is
not a Member or employee of the Legislature. In addition, "employee"
means a .
(E) A person employed by the
Supreme Court, a court of appeal, a superior court, or the
Administrative Office of the Courts for the purposes of Sections
8547.3 to 8547.7, inclusive, and Section 8547.13, except for those
provisions of Section 8547.4 concerning notice of adverse action and
the State Personnel Board. "Employee"
(2) For purposes of this subdivision,
"employee" includes a former employee who met the criteria of
this subdivision during his or her employment.
(b) "Illegal order" means a directive 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.
(c) "Improper governmental activity" means 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 that activity is within the scope
of his or her employment, and that (1) 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, (2) 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 (3) is economically wasteful, involves gross misconduct,
incompetency, or inefficiency. For purposes of Sections 8547.4,
8547.5, 8547.7, 8547.10, and 8547.11, "improper governmental activity"
includes any activity by the University of California or by an
employee, including an officer or faculty member, who otherwise meets
the criteria of this subdivision. For purposes of Sections 8547.4,
8547.5, and 8547.13, "improper governmental activity" includes any
activity by the Supreme Court, a court of appeal, a superior court,
or the Administrative Office of the Courts, or by an employee
thereof, who otherwise meets the criteria of this subdivision.
For purposes of Sections 8547.4, 8547.5, 8547.7, and
8547.14, "improper governmental activity" includes any
activity by the Legislature or by an employee thereof who otherwise
meets the criteria of this subdivision.
(d) "Person" means an individual, corporation, trust, association,
a state or local government, or an agency or instrumentality of any
of the foregoing.
(e) "Protected disclosure" means a good faith communication,
including a communication based on, or when carrying out, job duties,
that discloses or demonstrates an intention to disclose information
that may evidence (1) an improper governmental activity, or (2) a
condition that may significantly threaten the health or safety of
employees or the public if the disclosure or intention to disclose
was made for the purpose of remedying that condition. Protected
disclosure specifically includes a good faith communication to the
Bureau of State Audits alleging an improper governmental activity and
any evidence delivered to the Bureau of State Audits in support of
the allegation. "Protected disclosure" also includes, but is not
limited to, a complaint made to the Commission on Judicial
Performance.
(f) "State agency" is defined by Section 11000. "State agency"
includes the University of California for purposes of Sections 8547.5
to 8547.7, inclusive, and the California State University for
purposes of Sections 8547.3 to 8547.7, inclusive. Sections 8547.3 to
8547.7, inclusive, shall apply to the Supreme Court, the courts of
appeal, the superior courts, and the
Administrative Office of the Courts , and the Legislature
in the same manner as they apply to a state agency.
SEC. 2. Section 8547.3 of the
Government Code is amended to read:
8547.3. (a) An employee may not directly or indirectly use or
attempt 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 pursuant to
this article.
(b) For the purpose of subdivision (a), "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, but not limited to,
appointment, promotion, transfer, assignment, performance evaluation,
suspension, or other disciplinary action.
(c) Any employee who violates subdivision (a) may be liable in an
action for civil damages brought against the employee by the offended
party , except to the extent that a Member of the Legislature
is immune from liability under the doctrine of legislative immunity
.
(d) Nothing in this section shall be construed to authorize an
individual to disclose information otherwise prohibited by or under
law.
SEC. 3. Section 8547.14 is added to the
Government Code , to read:
8547.14. (a) An employee of the Legislature or applicant for
employment with the Legislature may file a written complaint with his
or her supervisor, manager, or other officer designated for that
purpose by the Committee on Rules of the Assembly or Senate, as
applicable, alleging actual or attempted acts of reprisal,
retaliation, threats, coercion, or similar improper acts prohibited
by Section 8547.3, 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. The complaint shall be filed
within one year of the most recent improper act complained about. The
Committees on Rules of the Assembly and Senate shall each designate
an officer to receive written complaints for purposes of this
subdivision.
(b) Except to the extent that a Member of the Legislature is
immune from liability under the doctrine of legislative immunity, any
person who intentionally engages in acts of reprisal, retaliation,
threats, coercion, or similar improper acts against an employee of
the Legislature or applicant for employment with the Legislature for
having made a protected disclosure, is subject to a fine not to
exceed ten thousand dollars ($10,000) and imprisonment in the county
jail for a period not to exceed one year.
(c) In addition to all other penalties provided by law, except to
the extent that a Member of the Legislature is immune from liability
under the doctrine of legislative immunity, any person who
intentionally engages in acts of reprisal, retaliation, threats,
coercion, or similar acts against a state employee or applicant for
state employment for having made a protected disclosure shall be
liable in an action for damages brought against him or her by the
injured party. Punitive damages may be awarded by the court where the
acts of the offending party are proven to be malicious. Where
liability has been established, the injured party shall also be
entitled to reasonable attorney's fees as provided by law.
(d) This section does 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 employee of
the Legislature or applicant for employment with the Legislature if
the supervisor, manager, or other officer reasonably believes any
action or inaction is justified on the basis of evidence separate and
apart from the fact that the person has made a protected disclosure.
(e) In any civil action, once it has been demonstrated by a
preponderance of evidence that an activity protected by this article
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 other officer of the Legislature 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.
(f) This article does not diminish the rights, privileges, or
remedies of any employee under any other federal or state law.
SEC. 4. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
SECTION 1. Section 12599.5 is added to the
Health and Safety Code, to read:
12599.5. (a) Notwithstanding Sections 12599 and 12672, each year
from 2012 to 2017, inclusive, the State Fire Marshal shall issue
separate one-time retail licenses pursuant to this section that shall
authorize the retail sale of safe and sane fireworks within this
state only from 9 a.m. on December 26, of a year within 2012 to 2017,
inclusive, until midnight of January 1 of the following year. A
license issued pursuant to this section shall be valid for only one
seven-day period and shall expire at the end of the period for which
it is valid. All fireworks sold pursuant to a license issued pursuant
to this section shall have been certified as safe and sane by the
State Fire Marshal as of June of the year in which the validity of
the license commences. No other license issued pursuant to this
chapter shall authorize the sale of fireworks during that period.
(b) No retail license shall be issued for the license period
authorized by this section unless the city, county, or city and
county having jurisdiction over the fixed location where the
fireworks would be sold adopts an ordinance or resolution allowing
that sale, and the application for that license is received by the
State Fire Marshal on or before December 15 of the year in which the
validity of the license is to commence. The ordinance or resolution
authorizing the sale of those fireworks may limit the period of use
of those fireworks to specified days and hours within the period
during which the sale is authorized by this section.
(c) This section shall become inoperative on January 2, 2018, and,
as of January 1, 2019, is repealed, unless a later enacted statute,
that is enacted before January 1, 2019, deletes or extends the dates
on which it becomes inoperative and is repealed.
SEC. 2. Section 12635.5 is added to the Health
and Safety Code, to read:
12635.5. (a) The State Fire Marshal Dangerous Fireworks Training
and Education Fund is hereby established in the State Treasury.
Notwithstanding Section 13340 of the Government Code, this fund is
continuously appropriated without regard to fiscal years to the State
Fire Marshal for the purpose of training local fire and law
enforcement agencies regarding the identification, risks, dangers,
and proper disposal associated with dangerous fireworks seized
pursuant to this part.
(b) Pursuant to Section 12630, the State Fire Marshal shall
establish and collect an additional fee on permits issued pursuant to
Section 12640 in an amount necessary to enforce this part with
respect to training and education regarding dangerous fireworks.
Notwithstanding Section 12635, these fees shall be deposited in the
State Fire Marshal Dangerous Fireworks Training and Education Fund.
(c) A local fire department, a local fire protection agency, a
local law enforcement agency, or any other public agency authorized
by statute to enforce the State Fire Marshal's regulations and whose
jurisdiction has adopted an ordinance or resolution pursuant to
subdivision (b) of Section 12599.5 may apply to the State Fire
Marshal for a grant for its costs in developing or implementing an
education and training program pursuant to this section.
(d) This section shall remain in effect only until January 1,
2018, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2018, deletes or extends
that date.
SEC. 3. No reimbursement is required by this
act pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.