BILL NUMBER: AB 1378 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JANUARY 13, 2012
AMENDED IN ASSEMBLY JANUARY 4, 2012
INTRODUCED BY Assembly Member Portantino
FEBRUARY 18, 2011
An act to amend Sections 8547.2 and ,
8547.3 , and 8547.5 of, and to add Section 8547.14
to, the Government Code, relating to the Legislature.
LEGISLATIVE COUNSEL'S DIGEST
AB 1378, as amended, Portantino. 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 that
procedures regarding notices of adverse action and the State
Personnel Board and except that would not
apply, penalties would not apply to the extent that a Member of
the Legislature is immune from liability under the doctrine of
legislative immunity , and Members of the Legislature
would not be persons permitted to submit an allegation to initiate
an investigation against the Legislature or a Member or an employee
of the Legislature or be offended parties permitted to bring an
action for civil damages against a Member or an employee of the
Legislature . 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.
Vote: majority. Appropriation: 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 any of the following:
(A) An individual appointed by the Governor.
(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.
(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.
(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.
(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, 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.
For purposes of this section, a Member of the Legislature is not
an offended party who may bring an action for damages if the
employee who violates subdivision (a) is a Member or an employee of
the Legislature.
(d) Nothing in this section shall be construed to authorize an
individual to disclose information otherwise prohibited by or under
law.
SEC. 3. Section 8547.5 of the
Government Code is amend ed to read:
8547.5. (a) The State Auditor shall create the means for the
submission of allegations of improper governmental activity both by
transmission via mail or other carrier to a specified mailing address
and electronic submission through an Internet Web site portal. The
State Auditor may request that a person submitting an allegation
provide his or her name and contact information and provide the names
and contact information for any persons who could help to
substantiate the claim. However, the State Auditor shall not require
any person submitting an allegation to provide his or her name or
contact information and shall clearly state on the agency Internet
Web site that this information is not required in order to submit an
allegation.
(b) Upon receiving specific information that any employee or state
agency has engaged in an improper governmental activity, the State
Auditor may conduct an investigation of the matter. The identity of
the person providing the information that initiated the
investigation, or of any person providing information in confidence
to further an investigation, shall not be disclosed without the
express permission of the person providing the information except
that the State Auditor may make the disclosure to a law enforcement
agency that is conducting a criminal investigation.
(c) Notwithstanding the definition of "person" in Section 8547.2,
a Member of the Legislature is not a person permitted to submit an
allegation to initiate an investigation pursuant to this section if
the allegation of improper governmental activity is directed against
the Legislature or a Member or an employee of the Legislature.
SEC. 3. SEC. 4. 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 a 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. SEC. 5. 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.