BILL ANALYSIS �
AB 1843
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Date of Hearing: April 10, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1843 (Hill) - As Introduced: February 22, 2012
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
(PUC) to establish a comprehensive 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, which is nearly identical to a
bill that passed out of this Committee last year, is 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 to be developed;
rather, it simply requires the PUC to establish a program
pursuant to its existing rule-making authority. Although the
Committee had not received a formal letter from the PUC at the
time of this writing, the PUC supported a nearly identical bill
last year. There is no known opposition to this bill.
SUMMARY : Requires the Public Utilities Commission (PUC),
pursuant to its existing rule-making authority, to establish a
comprehensive whistleblower protection program to protect public
utility employees, former employees, and third-party contractors
and subcontractors from retaliation for bringing information to
the PUC and other public entities regarding, but not limited to,
safety issues; specifies that that "other public entities"
includes the whistleblower hotline maintained by the California
Attorney General.
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)Requires the California Attorney General to maintain a
whistleblower hotline to receive calls from persons who have
information regarding possible violations of state or federal
statutes, rules, or regulations, or violations of fiduciary
responsibility by a corporation or limited liability company
to its shareholders, investors, or employees. (Labor Code
Section 1102.7.)
3)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.)
4)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.)
5)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
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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.)
6)Establishes the California Public Utilities Commission and
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 rule changes
considered by a recent PUC memorandum was the issue of
whistleblower protection for public utility employees who wish
to disclose safety problems without fear of retaliation. �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 contractors) who disclose
information to the PUC or "other public entities," including the
whistleblower hotline maintained by the California Attorney
General. This bill does not expressly prescribe 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 through its existing rule-making
authority. Although the background information suggests that
the bill primarily seeks to encourage reporting of
safety-related issues, the express language of the bill makes it
clear that the program need not be limited to safety-related
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issues. Other issues could include the reporting of unlawful
activity, though it should be noted, as discussed below,
existing law already protects 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
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, on the other hand, 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. As
to public utility employees, this bill would fill the gap
between these existing provisions.
Prior Legislation : Last year this Committee heard AB 1197
(Hill), which was substantially the same as this bill, except
that the current bill expressly states what was only implied in
last year's bill: that the PUC would develop this program
through its existing rule-making authority. Last year's bill
passed out of this Committee unanimously, but it was
subsequently held in the Assembly Appropriation Committee
without further action.
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."
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REGISTERED SUPPORT / OPPOSITION :
Support
California Public Utilities Commission
Opposition
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334