BILL NUMBER: AB 2256	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Portantino

                        FEBRUARY 24, 2012

   An act to add Article 11 (commencing with Section 9149.50) to
Chapter 1.5 of Part 1 of Division 2 of Title 2 of the Government
Code, relating to the Legislature.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2256, as introduced, Portantino. California Legislature
Whistleblower Protection Act.
   Existing law, the California Whistleblower Protection Act,
prohibits a state employee from using his or her official authority
or influence to discourage or retaliate against any person in order
to interfere with the right of that person to disclose evidence of an
improper government activity. The act requires the State Auditor to
investigate disclosures of improper government activities. The act
expressly does not apply to an employee who is a Member or employee
of the Legislature.
   This bill would enact, and would require the Fair Political
Practices Commission to administer, the California Legislature
Whistleblower Protection Act. The act would prohibit a Member or
employee of the Legislature from directly or indirectly using or
attempting to use his or her official authority or influence to
retaliate, threaten, coerce, or engage in any similar improper act
for the purpose of interfering with the right of an employee of the
Legislature to make a protected disclosure of improper governmental
activity or to refuse an illegal order, as defined. The act would
authorize a current, prospective, or former employee of the
Legislature, as specified, within one year of the most recent
improper act complained of, to file a written complaint with his or
her supervisor, manager, or other officer designated by the Senate
Committee on Rules or the Assembly Committee on Rules alleging actual
or attempted violations of these prohibited acts. The act would
provide that any Member or employee of the Legislature who
intentionally engages in these prohibited acts is subject to, except
as specified, a civil action brought by the injured party in addition
to specified civil and criminal penalties.
   The act would require the commission to create the means for the
submission of allegations of improper governmental activities to the
commission, and would authorize the commission to investigate the
allegations or refer them to the Senate Committee on Rules or the
Assembly Committee on Rules, the Attorney General, or the appropriate
district attorney for investigation. The act would require the
commission, if it investigates an allegation and determines that a
Member or employee of the Legislature may have engaged or
participated in such activities, to prepare an investigative report
and send a copy to the Senate Committee on Rules or the Assembly
Committee on Rules, as applicable. The act would also authorize the
commission, as it deems appropriate, to send a copy of the
investigative report to other entities.
   This bill would impose a state-mandated local program by creating
additional crimes.
   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.  The Legislature finds and declares all of the
following:
   (a) The California Whistleblower Protection Act prohibits a state
employee 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
Legislature has passed legislation exempting itself and its employees
from this prohibition.
   (b) The California Whistleblower Protection Act requires the State
Auditor to investigate and report on improper state governmental
activities. The State Auditor has maintained that she will not
investigate California Whistleblower Protection Act violation
allegations against Members or employees of the Legislature because
the Legislature is one of the State Auditor's clients.
   (c) The California Whistleblower Protection Act authorizes a state
employee or applicant for state 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. The Legislature has
exempted itself from these provisions and, therefore, legislative
employees have no protection against reprisal or retaliation for
reporting fraud, waste, criminal acts, abuse, or other improper
governmental activities.
   (d) There currently is no place where employees of the Legislature
can report fraud, waste, criminal acts, abuse, or other improper
governmental activities anonymously and without fear of reprisal or
retaliation. The lack of a forum to anonymously disclose improper
governmental activities creates an environment of secrecy and closed
government in the Legislature that serves to ensure that no
corrective action or measures are taken.
   (e) It is the intent of the Legislature that its decisions be made
openly. If there are instances of fraud, waste, criminal acts,
abuse, or other improper governmental activities, it is the policy of
the Legislature that these be reported and corrected. The
Legislature actively seeks openness and accountability in government.
Employees of the Legislature need to be free to report these abuses
with the same protections as other state employees.
  SEC. 2.  Article 11 (commencing with Section 9149.50) is added to
Chapter 1.5 of Part 1 of Division 2 of Title 2 of the Government
Code, to read:

      Article 11.  California Legislature Whistleblower Protection
Act


   9149.50.  This article shall be known and may be cited as the
California Legislature Whistleblower Protection Act.
   9149.51.  (a) The Legislature finds and declares that employees of
each house of the Legislature should be free to report waste, fraud,
abuse of authority, violations of law, or threats to the public
without fear of retribution. The Legislature further finds and
declares that legislative employees best serve the citizens of this
state when they can be candid and honest without reservation in
conducting the people's business. Employees of each house of the
Legislature have an affirmative duty to disclose or report improper
governmental activity.
   (b) The Legislature finds and declares that access to information
concerning the conduct of the people's business by the Legislature is
a fundamental and necessary right of every citizen in this state. It
is the intent of the Legislature that the Legislature conduct the
people's business in a manner that is free from improper governmental
activity. To this end, the Legislature encourages and requires that
instances of fraud, waste, abuse of authority, violations of law, or
threats to public safety be reported to an independent entity for
review and action.
   9149.52.  For the purposes of this article, the following terms
have the following meanings:
   (a) "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.
   (b) "Improper governmental activity" means an activity of a Member
or employee of either house of the Legislature that is undertaken in
the performance of the Member's or employee's duties, whether or not
that activity is within the scope of his or her employment, and is
in violation of any state or federal law or regulation, including
corruption, malfeasance, bribery, theft of government property,
fraudulent claims, fraud, coercion, conversion, malicious
prosecution, misuse of government property, or willful omission to
perform a duty, or that is economically wasteful or involves gross
misconduct, incompetency, or inefficiency.
   (c) "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
Fair Political Practices Commission alleging an improper governmental
activity and any evidence delivered to the commission in support of
the allegation. "Protected disclosure" also includes a complaint made
to the Commission on Judicial Performance.
   9149.53.  (a) (1) A Member or employee of either house of the
Legislature shall not directly or indirectly use or attempt to use
his or her official authority or influence to retaliate, threaten,
coerce, or engage in any similar improper act for the purpose of
interfering with the right of an employee of either house of the
Legislature to make a protected disclosure of improper governmental
activity or to refuse an illegal order.
   (2) For the purposes of this subdivision, the 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 appointment, promotion,
transfer, assignment, performance evaluation, suspension, or other
disciplinary action.
   (b) An employee of either house of the Legislature or applicant
for employment with either house of the Legislature may file a
written complaint with his or her supervisor, manager, or other
officer designated for that purpose by the Senate Committee on Rules
or the Assembly Committee on Rules, as applicable, alleging actual or
attempted acts of reprisal, retaliation, threats, coercion, or
similar improper acts prohibited by subdivision (a), together with a
sworn statement that the contents of the 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 Senate Committee on Rules and the Assembly
Committee on Rules shall each designate an officer to receive
complaints pursuant to this subdivision. A former employee of either
house of the Legislature may file a complaint pursuant to this
subdivision if the alleged acts complained of occurred on or after
January 1, 2013.
   (c) Except to the extent that a Member of the Legislature is
immune from liability under the doctrine of legislative immunity, a
person who intentionally engages in an act prohibited by subdivision
(a) is subject to all of the following:
   (1) (A) A civil action for damages brought against him or her by
the injured party. Punitive damages may be awarded by the court if
the acts of the offending party are proven to be malicious. If
liability is established, the injured party shall also be entitled to
reasonable attorney's fees.
   (B) In any civil action pursuant to this paragraph, once it has
been demonstrated by a preponderance of evidence that an activity
protected by this article was a contributing factor in the alleged
reprisal, retaliation, threat, coercion, or other similar improper
act against a former, current, or prospective employee of the
Legislature, the burden of proof shall be on the offending party to
demonstrate by clear and convincing evidence that the alleged action
would have occurred for legitimate and independent reasons even if
the employee had not engaged in a protected disclosure or refused an
illegal order.
   (2) A fine not to exceed ten thousand dollars ($10,000).
   (3) Imprisonment in a county jail for a period not to exceed one
year.
   (d) This section does not prevent a Member or employee of either
house 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
either house of the Legislature or applicant for employment with
either house of the Legislature if the Member or employee 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 or refused an illegal order.
   (e) This article does not diminish the rights, privileges, or
remedies of any employee under any other federal or state law, nor
does it authorize an individual to disclose information otherwise
prohibited by or under law.
   9149.54.  (a) The Fair Political Practices Commission shall
administer this article. For purposes of this article, the commission
does not have any enforcement power.
   (b) The commission shall establish the means for the submission of
allegations of improper governmental activity to the commission by
transmission via mail or other carrier to a specified mailing address
and by electronic submission through an Internet Web site portal.
The commission may request that a person submitting an allegation
voluntarily provide his or her name and contact information and the
names and contact information for any persons who could substantiate
the claim. However, the commission shall not require a person
submitting an allegation to provide his or her name or contact
information, and shall clearly state on its Internet Web site that
this information is not required in order to submit an allegation.
   (c) Upon receipt of an allegation pursuant to subdivision (b), the
commission may investigate the matter. The identity of the person
submitting the allegation 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 that person, except that the commission may make the disclosure to
a law enforcement agency that is conducting a criminal investigation
pursuant to subdivision (d) or (e).
   (d) As an alternative to conducting its own investigation, if the
commission determines that there is reasonable cause to believe that
a Member or employee of either house of the Legislature may have
engaged in an improper governmental activity, the commission may
refer the allegation to the Senate Committee on Rules or the Assembly
Committee on Rules to conduct an investigation of the allegation. If
the commission refers an allegation to the Senate Committee on Rules
or the Assembly Committee on Rules, that committee shall investigate
the allegation and report the results of the investigation to the
commission within 60 days of the referral and monthly thereafter
until final action has been taken. In addition, whenever the
commission determines that there is reasonable cause to believe that
a Member or employee of either house of the Legislature may have
engaged in an improper governmental activity, the commission may
refer the allegation to the Attorney General or the appropriate
district attorney.
   (e) If, after investigating an allegation, the commission finds
that a Member or employee of either house of the Legislature may have
engaged or participated in an improper governmental activity, the
commission shall prepare an investigative report and send a copy of
that report to the Senate Committee on Rules or the Assembly
Committee on Rules and the office of the Member or employee who is
the subject of the allegation. The investigative report may include
the commission's recommended actions to prevent the continuation or
recurrence of the activity. The commission may, as it deems
appropriate, also send a copy of the investigative report to the
Attorney General, the appropriate district attorney, the policy
committees of the Senate and Assembly having jurisdiction over the
subject involved, or to any other entity. The commission may provide
to the Senate Committee on Rules or the Assembly Committee on Rules
any evidence gathered during the investigation that, in the judgment
of the commission, is necessary to support any of the
recommendations. Within 60 days of receiving the commission's
investigative report, the Senate Committee on Rules or the Assembly
Committee on Rules, as applicable, shall report to the commission any
actions that it has taken or that it intends to take to implement
the recommendations. The committee shall file subsequent reports on a
monthly basis until final action has been taken.
   (f) The commission may request the assistance of any Member or
employee of either house of the Legislature, or the Senate Committee
on Rules or the Assembly Committee on Rules, in evaluating an
allegation or conducting any investigation of an improper
governmental activity as authorized by this article. In response to a
request for assistance from the commission, the Member or employee,
or the Senate Committee on Rules or the Assembly Committee on Rules,
as applicable, shall provide the assistance, including providing
access to documents or other information in a timely manner. No
information obtained from the commission by a Member or employee, or
the Senate Committee on Rules or the Assembly Committee on Rules, as
a result of the commission's request for assistance, or any
information obtained thereafter as a result of further investigation,
shall be divulged or made known to any person without the prior
approval of the commission.
   (g) The commission shall keep confidential every investigation,
including all investigative files and work product, except that the
commission, whenever it determines that it is necessary to serve the
interests of the state, may issue a public report of an investigation
that has substantiated an improper governmental activity, keeping
confidential the identity of the employee or employees involved. In
addition, the commission may release any findings or evidence
supporting any findings resulting from an investigation conducted
pursuant to this article whenever the commission determines it is
necessary to serve the interests of the state.
  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.