Amended in Assembly April 8, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2065

Introduced by Assembly begin delete Member Gorell end delete begin insert Members Melendez and Gorell end insert

February 20, 2014

begin delete An act to repeal and add Section 19132.5 of the Revenue and Taxation Code, relating to taxation, and making an appropriation therefor. end delete begin insert An act to amend Sections 8547.2 and 8547.3 of, and to add Section 8547.14 to, the Government Code, relating to the Legislature. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 2065, as amended, begin delete Gorell end delete   begin insert Melendez end insert . begin delete Income taxation: timeliness penalty: abatement. end delete begin insert California Whistleblower Protection Act: Legislature: employees. end insert

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The California Whistleblower Protection Act prohibits an 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. “Employee” is defined to include specified employees in the executive and judicial branches of state government. 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.

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This bill would make these provisions of the act applicable to the Legislature, except for procedures regarding notices of adverse action and the State Personnel Board and except that penalties would not apply to the extent that a Member of the Legislature is immune from liability under the doctrine of legislative immunity. 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.

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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.

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This bill would provide that no reimbursement is required by this act for a specified reason.

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Existing law imposes penalties when a taxpayer fails to timely file an income tax return or fails to timely pay the tax due as shown on, or as required to be shown on, the tax return, unless it is shown that the failure is due to reasonable cause and not due to willful neglect.

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The bill would require the Franchise Tax Board, upon taxpayer request, to abate a failure-to-file or failure-to-pay timeliness penalty when specified circumstances are met, including where the taxpayer has paid, or is in a current arrangement to pay, all tax currently due and the Franchise Tax Board has not imposed a timeliness penalty in the year of the request or prior 4 years. The bill would make a continuous appropriation from the General Fund to the Franchise Tax Board in those amounts necessary to make payments to those taxpayers who have paid the penalty that is being abated before the effective date of this bill.

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The bill would make a legislative finding and declaration regarding the public purpose served by the bill.

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Vote:  begin delete ²⁄₃ end delete begin insert majority end insert . Appropriation:  begin delete yes end delete begin insert no end insert . Fiscal committee: yes. State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

end insert

begin insert Section 8547.2 of the end insert begin insert Government Code end insert begin insert is
amended to read: end insert

8547.2.  

For the purposes of this article, the following terms
have the following meanings:

(a)  begin insert (1) end insert begin insert   end insert “Employee” means begin delete an end delete begin insert any of the following: end insert

begin insert (A) end insert begin insert   end insert begin insert An end insert individual appointed by the Governor begin delete , or an end delete begin insert . end insert

begin insert (B) end insert begin insert   end insert begin insert An individual end insert 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 begin delete , or an end delete begin insert . end insert

begin insert

(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 notices of adverse action and the
State Personnel Board.

end insert

begin insert (D) end insert begin insert   end insert begin insert An end insert individual appointed by the Legislature to a state board
or commission begin delete and who is not a Member or employee of the
Legislature. In addition, “employee” means a end delete begin delete person end delete begin insert . end insert

begin insert (E) end insert begin insert   end insert begin insert A person end insert 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. begin delete “Employee”
includes end delete

begin insert (2) end insert begin insert   end insert begin insert For purpose of this subdivision, “employee” includes end insert 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. begin insert 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. end insert

(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 California State Auditor’s Office alleging
an improper governmental activity and any evidence delivered to
the California State Auditor’s Office 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, begin delete and end delete the Administrative Office
of the Courts begin insert , and the Legislature end insert in the same manner as they apply
to a state agency.

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begin insert SEC. 2. end insert   

end insert

begin insert Section 8547.3 of the end insert begin insert Government Code end insert begin insert is amended
to read: end insert

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 begin insert , except to the extent that a Member of the
Legislature is immune from liability under the doctrine of
legislative immunity end insert .

(d) Nothing in this section shall be construed to authorize an
individual to disclose information otherwise prohibited by or under
law.

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begin insert SEC. 3. end insert   

end insert

begin insert Section 8547.14 is added to the end insert begin insert Government Code end insert begin insert , to
read: end insert

begin insert

begin insert 8547.14. end insert   

(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 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.

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begin insert SEC. 4. end insert   

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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.

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SECTION 1.  

Section 19132.5 of the Revenue and Taxation
Code is repealed.

SEC. 2.  

Section 19132.5 is added to the Revenue and Taxation
Code, to read:

19132.5.  

(a) (1) A taxpayer may elect to request abatement
of a timeliness penalty under this section for a timeliness penalty
that has been considered and rejected for abatement, waiver, or
rescission pursuant to the provisions of the section under which
the penalty is imposed.

(2) A taxpayer may, in lieu of requesting consideration for
abatement, waiver, or recission pursuant to the provisions of the
section under which the timeliness penalty is imposed, instead
request abatement of a timeliness penalty under this section.

(b) If a taxpayer described in subdivision (a) requests, either
orally or in writing, the abatement of a timeliness penalty pursuant
to this section, the timeliness penalty shall be abated if all of the
following apply:

(1) The taxpayer has not previously been required to file a
California return under Part 10 (commencing with Section 17001),
this part, or Part 11 (commencing with Section 23001), or no other
timeliness penalty has been imposed by the Franchise Tax Board
in the calendar year of the request for abatement or in the prior
four tax years.

(2) The taxpayer has filed all returns required under Part 10
(commencing with Section 17001), this part, or Part 11
(commencing with Section 23001), as of the date of the taxpayer’s
request for abatement.

(3) Excluding the timeliness penalty that is the subject of the
abatement request, the taxpayer has paid in full, or arranged to pay
pursuant to an installment agreement, any tax, penalties, fees, and
interest due for all currently required returns and the taxpayer is
current with all installment payments.

(c) For purposes of this section, “timeliness penalty” means a
penalty imposed under Section 19131, 19132, 19172, or 19172.5.

(d) For purposes of this section:

(1) A timeliness penalty imposed and subsequently abated due
to a determination of reasonable cause or reasonable cause and
not willful neglect with respect to the taxpayer or the taxpayer’s
spouse, shall be considered to have not been imposed.

(2) A timeliness penalty is considered imposed on the original
due date of the return for the taxable year for which the penalty is
imposed.

(3) If a taxpayer requests abatement for more than one taxable
year and two or more taxable years would be eligible for abatement
under this section, then only the penalty for the earliest taxable
year shall be abated.

(4) This section shall apply to requests for abatement made
before, on, or after the effective date of the act adding this section.

(e) The Franchise Tax Board may issue any regulations
necessary or appropriate to implement this section.

(f) Notwithstanding Section 13340 of the Government Code,
and without regard to fiscal year, there is hereby continuously
appropriated from the General Fund to the Franchise Tax Board
those amounts necessary to make the payments required by the
act adding this subdivision with respect to the abatement of
penalties paid before the effective date of the act adding this
subdivision.

SEC. 3.  

The Legislature finds and declares that the abatement
by this act of timeliness penalties with respect to the abatement of
penalties paid before the effective date of the act adding this
subdivision, serves a public purpose and does not constitute a gift
of public funds within the meaning of Section of Article XVI of
the California Constitution.

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