Amended in Senate June 15, 2014

Amended in Assembly May 13, 2014

Amended in Assembly May 5, 2014

Amended in Assembly April 8, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2065

Introduced by Assembly Members Melendez, Garcia, and Gorell

February 20, 2014

An act to begin delete amend Sections 8547.2, 8547.3, and 8547.5 of, and to add Section 8547.14 to, end delete begin insert add Article 11 (commencing with Section 9149.30) to Chapter 1.5 of Part 1 of Division 2 of Title 2 of end insert the Government Code, relating to the Legislature.

LEGISLATIVE COUNSEL’S DIGEST

AB 2065, as amended, Melendez. begin delete California Whistleblower Protection Act: end delete begin insert Legislative Employee Whistleblower end insert begin insert Protection Act end insert begin insert : end insert Legislature: employees.

begin insert

Existing law provides procedures for a person to file a complaint alleging violations of legislative ethics. Existing law also authorizes each house of the Legislature to adopt rules for its proceedings and to select committees necessary for the conduct of its business.

end insert begin insert

This act would prohibit retaliation against legislative employees, as defined, who make protected disclosures of ethics violations. This act would establish a procedure for legislative employees to report acts of retaliation. The act would also impose civil and criminal liability on a person who engages in retaliatory acts, as specified.

end insert begin delete

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.

end delete

begin delete This bill would make these provisions of the act applicable to the Legislature, except that procedures regarding notices of adverse action and the State Personnel Board would not apply, penalties would not apply to the extent that a Member of the Legislature is immune from liability under the doctrine of legislative immunity, and a Member of the Legislature would not be a person permitted to submit an allegation to initiate an investigation against the Legislature or a Member or an employee of the Legislature. 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. end delete By expanding the scope of crimes under the act, the bill would impose a state-mandated local program.

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:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Article 11 (commencing with Section 9149.30) is
added to Chapter 1.5 of Part 1 of Division 2 of Title 2 of the end insert begin insert Government Code end insert begin insert , to read: end insert

begin insert

 

Article begin insert 11. end insert   Legislative Employee Whistleblower Protection Act

 

begin insert 9149.30. end insert   

This article shall be known and may be cited as the
Legislative Employee Whistleblower Protection Act.

begin insert 9149.31. end insert   

The Legislature finds and declares that legislative
employees should be free to report ethical violations without fear
of retribution.

begin insert 9149.32. end insert   

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

(a) “Legislative employee” means an individual, other than a
Member of either house of the Legislature, who is currently
employed by either house of the Legislature.

(b) “Protected disclosure” means the filing of a complaint
alleging a violation of Article 2 of Chapter 1 of this part or of any
standard of conduct, as defined by the standing rules of either
house of the Legislature.

(c) “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.

begin insert 9149.33. end insert   

(a) A Member of the Legislature or legislative
employee shall not directly or indirectly use or attempt to use that
person’s official authority or influence for the purpose of
intimidating, threatening, coercing, commanding, or attempting
to intimidate, threaten, coerce, or command a legislative employee
for the purpose of interfering with the right of the legislative
employee to make a protected disclosure.

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

(c) 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
legislative employee 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.

begin insert 9149.34. end insert   

A legislative employee may file a written complaint
with either house of the Legislature pursuant to its rules alleging
actual or attempted acts of reprisal, retaliation, threats, coercion,
or similar improper acts prohibited by Section 9149.33. The
complaint, together with a sworn statement under penalty of
perjury that the contents of the complaint are true, or are believed
by the affiant to be true, shall be filed within one year of the most
recent improper act complained about.

begin insert 9149.35. end insert   

Except to the extent that a Member of the Legislature
is immune from liability under the doctrine of legislative immunity,
a person who violates Section 9149.33 is subject to a fine not to
exceed ten thousand ($10,000) and imprisonment in a county jail
for a period not to exceed one year.

begin insert 9149.36. end insert   

(a) 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, a person
who violates Section 9149.33 shall be liable in a civil action for
damages brought by a legislative employee.

(b) (1) 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
legislative employee, 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, independent
reasons even if the legislative employee had not made a protected
disclosure.

(2) 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 as provided by law.

(c) A legislative employee is not required to file a complaint
pursuant to Section 9149.34 before bringing an action for civil
damages.

begin insert 9149.37. end insert   

This article does not diminish the rights, privileges,
or remedies of a legislative employee under any other federal or
state law.

end insert

begin delete

SECTION 1.  

Section 8547.2 of the Government Code is
amended to read:

8547.2.  

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

(a) (1) “Employee” means any of the following:

(A) An individual appointed by the Governor.

(B) An individual 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.

(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 notice of adverse action and the State
Personnel Board.

(D) An individual appointed by the Legislature to a state board
or commission.

(E) A person 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.

(2) For purposes of this subdivision, “employee” includes 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. 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.

(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, the Administrative Office of
the Courts, and the Legislature in the same manner as they apply
to a state agency.

SEC. 2.  

Section 8547.3 of the Government Code is amended
to read:

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, except to the extent that a Member of the
Legislature is immune from liability under the doctrine of
legislative immunity. For purposes of this section, a Member of
the Legislature is not an offended party who may bring an action
for damages if the employee who violates subdivision (a) is a
Member or an employee of the Legislature.

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

SEC. 3.  

Section 8547.5 of the Government Code is amended
to read:

8547.5.  

(a) The State Auditor shall create the means for the
submission of allegations of improper governmental activity both
by transmission via mail or other carrier to a specified mailing
address and electronic submission through an Internet Web site
portal. The State Auditor may request that a person submitting an
allegation provide his or her name and contact information and
provide the names and contact information for any persons who
could help to substantiate the claim. However, the State Auditor
shall not require any person submitting an allegation to provide
his or her name or contact information and shall clearly state on
the agency Internet Web site that this information is not required
in order to submit an allegation.

(b) Upon receiving specific information that any employee or
state agency has engaged in an improper governmental activity,
the State Auditor may conduct an investigation of the matter. The
identity of the person providing the information 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 the person providing the information except
that the State Auditor may make the disclosure to a law
enforcement agency that is conducting a criminal investigation.

(c) Notwithstanding the definition of “person” in Section 8547.2,
a Member of the Legislature is not a person permitted to submit
an allegation to initiate an investigation pursuant to this section if
the allegation of improper governmental activity is directed against
the Legislature or a Member or an employee of the Legislature.

SEC. 4.  

Section 8547.14 is added to the Government Code, to
read:

8547.14.  

(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 a
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.

end delete

begin delete SEC. 5. end delete
begin insert SEC. 2. end insert   

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.