BILL ANALYSIS �
AB 1378
Page 1
Date of Hearing: January 10, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1378 (Portantino) - As Amended: January 4, 2012
SUBJECT : COMPLAINTS ASSERTING WRONGDOING BY AND AGAINST
LEGISLATIVE MEMBERS AND STAFF
KEY ISSUES :
1)SHOULD CURRENT AND FORMER MEMBERS OF THE LEGISLATURE AND ALL
TYPES OF LEGISLATIVE STAFF FACE POTENTIAL INVESTIGATION BY THE
STATE AUDITOR AND SPECIFIED PENALTIES FOR ALLEGED IMPROPER
GOVERNMENTAL ACTIVITIES?
2)IS IT APPROPRIATE THAT MEMBERS OF THE LEGISLATURE WHO ALREADY
HAVE ACCESS TO LEGISLATIVE AND POLITICAL PROCESSES ALSO BE
ABLE TO FILE WHISTLEBLOWER CLAIMS AGAINST OTHER MEMBERS AND
LEGISLATIVE STAFF?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill proposes to add the Legislature to the Whistleblower
Protection Act. The effect would be to allow current and former
Members of the Legislature and legislative staff to be both
potential complainants and potential subjects of complaints
alleging "improper governmental activities," a term that
encompasses a wide range of actions such as bribery, corruption
and theft, as well as alleged "incompetence" and "inefficiency."
These complaints could be filed anonymously, over the Internet,
and without a deadline, creating the possibility for a
substantial increase in the number of complaints that must be
handled by the State Auditor, who currently investigates only
the executive branch, not the Legislature.
The bill would also subject Members of the Legislature and
legislative staff to potential penalties for retaliation against
a person who filed a complaint of improper governmental activity
or other actions, even if no actual improper governmental
activity or wrongdoing occurred. As the sponsor of the bill,
the author argues that the Legislature needs to prove to the
public that the Legislature is above reproach. Nevertheless,
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the doctrine of legislative immunity would appear to largely
shield Members from any responsibility for violations of the
Whistleblower Protection Act, leaving legislative staff as
potential targets to the extent they are not also covered by
legislative immunity. The Committee has received no reported
support or opposition to the bill.
SUMMARY : Adds legislators and legislative staff to the
California Whistleblower Protection Act (WPA). Specifically,
this bill :
1)Appears to subject Members of the Legislature and legislative
staff to complaints of wrongdoing alleging "improper
governmental activity" including, among other things:
malfeasance, corruption, fraud, coercion, misuse of government
property, and willful omission to perform duty, as well as
conduct that is wasteful, incompetent or inefficient.
Improper governmental activity under the bill is said to
include "any activity by the Legislature," presumably
including purely legislative acts that may otherwise be
shielded under the constitutional doctrine of legislative
immunity.
a) These complaints can be brought by "any individual,
corporation, ? association, state or local government or
agency" including any member of the general public.
b) Complaints are to be received and investigated by the
State Auditor via the Internet and other means.
c) Complainants are entitled to complete anonymity and
confidentiality.
d) Former Members of the Legislature and former staff would
forever be subject to complaints for their actions as
Members or staff after their term of office or employment
expires; there is no statute of limitations on when these
complaints can be filed.
e) Under the bill, these administrative complaints are not
expressly precluded by the doctrine of legislative immunity
as other provisions of the bill are, although legislative
immunity may in fact apply to some acts.
2)Appears to subject Members of the Legislature and legislative
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staff to law suits by any person alleging that the legislator
or staff person directly or indirectly used or attempted to
use his or her official authority or influence for the purpose
of intimidating, threatening, coercing or commanding - or
attempting to intimidate, threaten, coerce or command - any
person for the purpose of interfering with the rights
conferred pursuant to the Whistleblower Protection Act - e.g.,
filing a complaint, pursuing an investigation, filing a law
suit, etc. A violation of this prohibition would be subject
to a potential civil action for damages by the offended party.
However, Members of the Legislature would be protected under
the doctrine of legislative immunity. It is not clear whether
legislative staff would also be protected by this doctrine.
3)Appears to subject Members of the Legislature, as well as
legislative staff, to a fine up to ten thousand dollars
($10,000) and imprisonment in the county jail for up to one
year for reprisal, retaliation, threats, coercion, or similar
improper acts against an employee of the Legislature or
applicant for employment with the Legislature. However,
Members of the Legislature would be protected under the
doctrine of legislative immunity, while it is unclear whether
legislative staff would likewise be similarly immune.
4)Appears to subject Members of the Legislature, as well as
legislative staff, to civil law suits for damages, punitive
damages and attorney's fees for reprisal, retaliation,
threats, coercion, or similar improper acts against a State
(non-legislative) employee or applicant for having made a
protected disclosure. However, Members of the Legislature
would be protected under the doctrine of legislative immunity;
legislative staff may or may not be covered by legislative
immunity.
5)Permits Members of the Legislature to invoke the WPA and
involve the State Auditor in complaints against the
Legislature, other Members (current and former) and
legislative staff. It is unclear whether the doctrine of
legislative immunity would cover these complaints either for
Members or for legislative staff.
EXISTING LAW :
1)Pursuant to the California Whistleblower Protection Act (WPA),
prohibits "improper governmental activities" by state agencies
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and employees. (Government Code section 8547.2, 8547.4.)
2)Defines "improper governmental activity" as 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. (Govt. Code
section 8547.2(c).)
3)Defines employee to include former employees, but specifically
excludes Members and staff of the Legislature from the
definitions of "employee" and "state agency." (Govt. Code
section 8547.2(a), (f).)
4)Directs the State Auditor to accept complaints by mail and via
Internet, and to conduct investigations of alleged improper
governmental activities, and authorizes the State Auditor to
issue reports of its findings including recommended corrective
actions if it finds reasonable cause to believe an improper
governmental activity has occurred. (Govt. Code sections
8547.4, 8547.5, 8547.7.)
5)Provides that the State Auditor shall permit complaints to be
filed anonymously and shall keep the identity of all
complainants and witnesses confidential unless given the
express permission of the person, except that the State
Auditor may make the disclosure to a law enforcement agency
that is conducting a criminal investigation. (Govt. Code
section 8547.5.)
6)Requires the State Auditor to keep confidential every
investigation, including, but not limited to, all
investigative files and work product, except that the State
Auditor may issue a public report of an investigation that has
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substantiated an improper governmental activity, keeping
confidential the identity of the employee or employees
involved. (Govt. Code section 8547.7.)
7)Requires the employing state agency to take adverse employment
action against any employee found by the State Auditor to have
engaged or participated in improper governmental activity or
to set forth in writing its reasons for not taking adverse
action, and likewise requires the employing agency to report
on actions it has taken to implement the BSA's
recommendations. (Govt. Code sections 8547.4, 8547.7.)
8)Prohibits state employees and officers, other than Members and
employees of the Legislature, from directly or indirectly
using or attempting 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 the WPA. (Govt. Code
section 8547.3.)
9)Defines "use of official authority or influence" to include
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. (Govt. Code section
8547.3.)
10)Provides that any employee who violates this prohibition
against use of authority or influence to be liable in an
action for civil damages brought by the offended person.
(Govt. Code section 8547.3.)
11)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 State Personnel Board (SPB) and the SPB issued, or
failed to issue, findings of its hearings or investigation.
(Gov. Code Sec. 8547.8.)
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12)Under the constitutional doctrine of legislative immunity,
prohibits legal action against legislators for legislative
activity and other acts within the sphere of legislative
activity. (Tenney v. Brandhove, 341 U.S. 367, 375(1951);
Bogan v. Scott-Harris, 523 U.S. 44, 49(1998); Steiner v.
Superior Court, 50 Cal.App.4th 1771, 1784 (1996).))
13)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.)
14)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. (Labor Code section 1102.5.)
15)Likewise prohibits public and private employers from
retaliating against an employee for: (a) 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.)
16)Provides that any employer who violates Labor Code section
1102.5 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.)
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COMMENTS : In support of the bill the author states:
The California Whistleblower Protection Act authorizes the
California State Auditor to receive and investigate
complaints from state employees and members of the public
who wish to report an improper governmental activity.
State employees who file a complaint are entitled to
protection against retaliation by their employers for
filing the complaint. This Act currently covers employees
of the Governor, every agency or department of state
government, legislative appointees to state boards or
commissions and employees of the CSU system.
Unfortunately employees of the California State Legislature
have no such protections if they report crimes, waste fraud
or other governmental irregularities.
In a time when public confidence in our state legislature
is at an all-time low and we are experiencing a lack of
openness and accountability in government, we need to prove
to the public that their Legislature is above reproach. If
there is fraud, criminal acts, waste, theft or
embezzlement, employees of the legislature need to be free
to report these abuses with the same protections as every
other state employee.
This Bill Would Open Current And Former Members Of The
Legislature, Current And Former Legislative Staff And The
Legislature Itself To Complaints By Any Person Who Alleges
Improper Governmental Activity, To Be Investigated By The State
Auditor. By adding both current and former Members and all
legislative staff to the definition of "employee," and adding
the Legislature as an institution to the definition of "state
agency," this bill would permit "any individual, corporation, ?
association, state or local government or agency" to file a
complaint against any Member or employee of the Legislature for
alleged improper governmental activity. Thus, any person -
including any resident of California, any business or
association, or any local government agency - would be entitled
to file a complaint.
"Improper governmental activity" includes, among other things:
"malfeasance, corruption, bribery, fraud and theft," which may
be the author's primary objective, as well as broader concepts
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such as "coercion, misuse of government property and willful
omission to perform duty" and conduct that is "wasteful,
incompetent or inefficient." The bill specifically includes as
potential improper governmental activity "any activity by the
Legislature," presumably including legislative acts.
The definition of "employee" includes former employees.
Consequently, former Members and staff would continue to be
subject to potential complaints long after they have completed
their service in the Legislature. There is no deadline or
statute of limitations by which complaints must be filed so long
as they allege improper governmental activity during the period
of service or employment. In addition, all legislative staff
would be covered, regardless of their responsibilities.
The State Auditor is required to receive complaints via the
Internet. All complainants are entitled to complete anonymity,
as well as virtually complete confidentiality. Each complaint
is to be received, evaluated and investigated as appropriate by
the State Auditor, who is to prepare a written report if she or
he finds reasonable cause to believe that improper governmental
activity may have occurred.
The expansive and imprecise nature of the term "improper
governmental activity," the broad pool of potential
complainants, and the open-ended time period for filing
complaints would in combination appear to permit a very
substantial increase in the volume of complaints to be handled
by the State Auditor. As many observers have noted, the
legislative process is inherently inefficient by constitutional
design, and reflects the celebrated "checks and balances" that
are often said to be the genius of our democratic republic. Of
course, many people naturally feel frustrated when government is
unable to solve various social problems or chooses to address
those problems in ways other than that person would prefer. In
light of the nature of the legislative process and the competing
political values of any large and diverse population, it seems
likely that there may be many potential complainants who allege
anonymously over the Internet that a Member of the Legislature
is corrupt, incompetent, inefficient, wasteful, or has willfully
omitted to perform his or her duties.
Moreover, particularly because complaints may be filed
anonymously and confidentially, it would unfortunately appear
impossible to exclude potential complaints that might be
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initiated for the nefarious purpose of seeking political
advantage or embarrassment by an individual, business,
association or local government subject to a legislative probe
or engaged in a dispute or rivalry with a Member. While the
State Auditor would not be legally obligated to investigate
every complaint, she or he would be expected to undertake a
serious and thorough assessment of every complaint. The bill
may therefore place significant pressure on the resources of the
State Auditor and impose substantial additional costs.
Despite the Proposed Inclusion of the Legislature Within the
Whistleblower Act, It Is Not Clear Whether the Doctrine of
Legislative Immunity May Nevertheless Protect Members From
Complaints. Unlike other provisions of the bill, discussed
below, the provision permitting public complaints against
Members for alleged improper governmental activities does not
expressly incorporate the doctrine of legislative immunity as a
defense.
Members of the Legislature are largely immune from liability
under the longstanding doctrine of legislative immunity.
Legislative immunity is rooted in the protection afforded by the
speech and debate clause of U.S. Constitution Art. I �6, cl.1.,
stating that legislators shall, "be privileged from Arrest
during their Attendance at the Session of their respective
Houses, and in going to and returning from the same; and for any
Speech or Debate in either House, they shall not be questioned
in any other Place." Legislative immunity has also been
recognized as a principle of the separation of powers doctrine
in article III, section 3 of the California Constitution on the
ground that it prohibits judicial inquiry into the motives
behind legislative actions. (Steiner v. Superior Court, 50
Cal.App.4th 1771, 1784 (1996).) Legislative immunity serves to
ensure that legislators can be free to carry out their duties as
representatives without fear of criminal and civil liability.
(Tenney v. Brandhove, 341 U.S. 367, 375(1951).) This protection
is absolute, and generally provides legislators complete
immunity - not only from liability, but from initiation of legal
action - for their legislative activities, as well as all other
actions "within the sphere of legitimate legislative activity."
(Bogan v. Scott-Harris, 523 U.S. 44, 49(1998).) Legislative
immunity has sometimes also been extended to legislative staff,
although there appears to be no California case law on this
point and cases from other jurisdictions are not consistent in
extending to staff the immunity that legislators enjoy.
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Case law suggests that legislative immunity may apply to
administrative processes, such as investigation by the State
Auditor, in addition to civil and criminal court actions,
although legislative immunity may be waived by statute. It is
not clear whether this bill intends to waive legislative
immunity with respect to complaints made to the State Auditor,
both because the doctrine of legislative immunity is not
referenced in this section of the bill and because the bill
declares that legislative immunity is intended to exempt members
from "liability," which the administrative complaint process
does not involve. Indeed, the digest of the bill prepared by
Legislative Counsel states that legislative immunity would
protect Members from "penalties," but does not indicate that the
bill precludes the State Auditor from conducting an
investigation and preparing a report and recommendation.
It is therefore not clear whether, or the extent to which, the
expansion of the WPA to include Members of the Legislature would
prevent the State Auditor from investigating some potential
complaints. To that extent, the bill's promise of reform may be
more apparent than real. Nevertheless, if legislative immunity
is intended to apply to complaints of improper governmental
activity, the bill would require the State Auditor to engage in
complex legal determinations whether an alleged act falls within
the scope of legislative immunity, discussed in more detail
below.
The Legislature Has Recently Added Significant New
Responsibilities To the Office of the State Auditor. Last year
the Legislature enacted AB 187 (Lara) authorizing the State
Auditor to establish a local government agency audit program to
identify, audit, and issue reports on any local government
agency that the State Auditor identifies as being at high risk
for the potential of waste, fraud, abuse, or mismanagement or
that has major challenges associated with its economy,
efficiency, or effectiveness. The Legislature also recently
added to the workload of the State Auditor by adding judicial
branch employees to the WPA pursuant to AB 1749 (Lowenthal) of
2010.
As This Measure Moves Forward It May Be Necessary To Give
Greater Consideration To The Sensitive Balance Of
Responsibilities And Independence Between The Legislature And
The State Auditor. Under the long-established framework now in
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effect, the State Auditor is largely dependent on the
Legislature, which is not subject to audit or investigation by
the Auditor, and is largely independent of the executive branch,
which is subject to investigation. Indeed, the State Auditor
was initially established as a legislative appointee for the
purpose of investigating the executive branch.
The traditional exclusion of legislative Members and staff
presumably reflects this sensitive relationship between the
Legislature, the executive branch, and the State Auditor.
Although now a separate entity, the State Auditor is subject to
great influence by the Legislature and perhaps for that reason
has historically not been charged with conducting investigations
of the legislative branch. Instead, the functions of the State
Auditor are directed at the executive branch, from which the
State Auditor enjoys important independence. For example,
unlike other agencies, the State Auditor's budget request is
required to be included in the Governor's budget without
revision by the Governor. (Government Code section 8543.4.)
Likewise, the State Auditor is nominated by and may be removed
from office by the Legislature. (Government Code sections
8543.2, 8543.6.) In addition, the State Auditor is dependent on
the Legislature for its assignments, either as directed by the
Joint Legislative Audit Committee or by bills enacted by the
Legislature.
Thus, the State Auditor is highly dependent upon the
Legislature, which it does not audit or investigate, and is
considerably independent of the executive, which is subject to
examination by the Auditor. As drafted, this bill does not
address how this careful balance would be preserved if the
Auditor were charged with investigation of the Legislature.
This Bill Would Purportedly Also Open The Legislature, Current
and Former Members and Current And Former Legislative Staff To
Lawsuits By Any Person Who Alleges Retaliation For Filing A
Complaint. However, Members Would Be Largely Shielded From Any
Liability For Wrongdoing By The Legislative Immunity Doctrine.
In addition to allowing complaints to the State Auditor against
Members and staff for alleged improper governmental activity,
this bill would also permit law suits against Members and staff
who are alleged to have retaliated against any person for filing
a complaint with the State Auditor or otherwise exercising a
right under the WPA.
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This prohibition against retaliation provides that a Member or
staff may not "directly or indirectly use or attempted to use
�his or her] official authority or influence for the purpose of
intimidating, threatening, coercing or commanding - or
attempting to intimidate, threaten, coerce or command - any
person for the purpose of interfering with the rights conferred
pursuant to �the Whistleblower Protection Act]."
Allegations of retaliation are separate and distinct from
allegations of improper governmental activity. That is, a
complaint of alleged improper governmental activity could be
investigated and found to be groundless, but the complainant
would still have the independent right to file suit alleging
retaliation for having filed the complaint. Complaints of
alleged retaliation would not be subject to investigation by the
State Auditor; they would be filed as lawsuits in court.
As noted above, notwithstanding the bill's ostensible goals,
Members of the Legislature would be largely immune from
liability under the doctrine of legislative immunity.
The bill does not provide for liability to be imposed against
the Legislature itself; only "employees" would have any
potential liability. In light of legislative immunity for
Members of the Legislature, however, the primary target of these
lawsuits would appear to be current and former legislative
staff, although that may include any former legislative staff
who are later elected to legislative office. It is not clear
whether legislative staff would be protected by the doctrine of
legislative immunity. There appears to be no California case
law on this issue, and disagreement among the courts in other
jurisdictions regarding when and how legislative immunity may be
extended to staff.
A separate provision of the bill would protect legislative staff
and other State employees against retaliation, and allow for
potential fines and imprisonment. It would also provide for a
civil action against legislative staff for damages by State
employees, although not by employees of the Legislature. Again,
however, Members of the Legislature would be protected by the
doctrine of legislative immunity. The primary object of these
penalties therefore would appear to be legislative staff, unless
they too were found to be protected by legislative immunity, an
issue that is not clear in the author's proposal.
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This Bill Would Also Allow Legislators Themselves To Invoke The
Whistleblower Protection Act Against the Legislature, Other
Members, and Legislative Staff. However, Legislative Immunity
May Largely Shield Members From Investigation or Responsibility
For Any Potential Wrongdoing. In addition to being potential
subjects of complaints alleging improper governmental activities
by the Legislature, Members and staff, as discussed above, this
bill would allow Members to be potential complainants under the
WPA. Members would have the right to file complaints with the
State Auditor alleging improper governmental activities by the
Legislature, fellow Members (both current and former), or
legislative staff, including the Member's own staff.
Possible Committee Amendment: Leaving aside the unresolved
issues discussed above regarding the broad variety of
allegations permitted by the bill and the potential complexities
of the relationship between and the independence of the State
Auditor and the Legislature, the Committee may determine that it
is not necessary or appropriate to allow Members of the
Legislature to invoke the WPA to complain about improper
governmental activity by the Legislature itself, other Members
or legislative staff. As direct participants in the political
and legislative processes, Members of the Legislature have
access to all of the political, legislative and other
governmental mechanisms available to prevent and correct any
alleged improprieties that a Member may perceive.
Further, many of these alleged improprieties may be inherently
political, or at least highly impressionistic. It may therefore
not be necessary or appropriate to allow Members to invoke the
WPA and the apparatus of the State Auditor for the purpose of
investigating disputes regarding alleged conduct by the
Legislature or fellow Members. Moreover, because the doctrine
of legislative immunity may preclude any investigation or
responsibility on the part of Members, the primary effect of
authorizing Members to file complaints alleging improper
governmental activity against the Legislature may be to expose
only legislative staff to such complaints - an avenue that may
be unnecessary in light of the substantial authority Members
currently have regarding legislative staff. The Committee may
therefore wish to amend the bill so that Members do not have
resort to the State Auditor complaint process and retaliation
provisions.
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REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334