BILL ANALYSIS �
AB 1378
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Date of Hearing: January 19, 2012
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
AB 1378 (Portantino) - As Amended: January 13, 2012
Policy Committee:
JudiciaryVote:10-0
Urgency: No State Mandated Local Program:
Yes Reimbursable: No
SUMMARY
This bill adds legislators and legislative staff to the
California Whistleblower Protection Act (WPA). Specifically,
this bill:
1)Subjects current and former members of the Legislature and
legislative staff to complaints of wrongdoing alleging
"improper governmental activity," as defined. Pursuant to
current law, the State Auditor is charged with investigating
all such complaints.
2)Prohibits a member of the Legislature from making a complaint,
pursuant to (1), against another legislator or a legislative
employee.
3)Subjects members of the Legislature and legislative staff to
lawsuits 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.,
to file a complaint, pursue an investigation, file a lawsuit,
etc. Prohibits members of the Legislature filing such an
action based on an allegation against another member or a
legislative employee.
4)Subjects members of the Legislature and legislative staff to a
fine up to $10,000 and imprisonment in county jail for up to
one year for reprisal, retaliation, threats, coercion, or
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similar improper acts against an employee of, or applicant for
employment with, the Legislature.
5)Subjects members of the Legislature and 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 non-legislative state employee for
having made a protected disclosure.
6)Exempts members of the Legislature from (2), (3), and (4) to
the extent they are provided immunity under the doctrine of
legislative immunity.
FISCAL EFFECT
The State Auditor is required to receive, evaluate and
investigate every complaint as deemed appropriate, and 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 permit a substantial increase in the volume of
complaints to be handled by the auditor, who while not legally
obligated to investigate every complaint, would be expected to
undertake a serious and thorough assessment of every complaint.
The auditor preliminary estimates annual General Fund costs of
$400,000 for three investigators and a half-time attorney.
COMMENTS
1)Purpose . The WPA authorizes the State Auditor to receive and
investigate complaints from state employees and members of the
public wishing 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. According to the author, while the WPA covers
all executive branch employees, 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
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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."
2)The WPA 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 (a) 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, (b) 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 (c) is
economically wasteful, involves gross misconduct,
incompetency, or inefficiency.
Analysis Prepared by : Chuck Nicol / APPR. / (916) 319-2081