Amended in Senate July 1, 2014

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 add Article 11 (commencing with Section 9149.30) 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 2065, as amended, Melendez. Legislative Employee Whistleblower Protection Act: Legislature: employees.

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.

This act would prohibit begin delete retaliation against end delete begin insert interference with the right of end insert legislative employees, as defined, begin delete who end delete begin insert to end insert make protected disclosures of ethics violations. begin insert It would also prohibit retaliation against legislative employees who have made protected disclosures. end insert This act would establish a procedure for legislative employees to report begin delete acts of retaliation end delete begin insert violations of the act to the Legislature end insert . The act would also impose civil and criminal liability on a person who begin insert interferes with a legislative employee’s right to make a protected disclosure or who end insert engages in retaliatory acts, as specified.

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:

SECTION 1.  

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

 

Article 11.  Legislative Employee Whistleblower Protection Act

 

9149.30.  

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

9149.31.  

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

9149.32.  

For the purposes of this article, the following begin delete words end delete
begin insert terms end insert 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.

9149.33.  

(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.

begin insert

(b) Except to the extent that a Member of the Legislature is
immune from liability under the doctrine of legislative immunity,
a person who violates this section 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.

end insert begin insert

(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, a person who violates
this section shall be liable in a civil action for damages brought
by a legislative employee.

end insert begin delete

(b)

end delete

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

begin delete

(c)

end delete

begin insert (e) end insert  This section begin delete does not end delete begin insert is not intended to end insert 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.

9149.34.  

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.

9149.35.  

Except to the extent that a Member of the Legislature
is immune from liability under the doctrine of legislative immunity,
a person who begin delete violates Section 9149.33 end delete begin insert intentionally engages in
acts of reprisal, retaliation, threats, coercion, or similar acts
against a legislative employee for having made a protected
disclosure end insert is subject to a fine not to exceed ten thousand begin insert dollars end insert
($10,000) and imprisonment in a county jail for a period not to
exceed one year.

9149.36.  

(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 begin delete violates Section 9149.33 end delete begin insert intentionally engages in acts of
reprisal, retaliation, threats, coercion, or similar acts against a
legislative employee for having made a protected disclosure end insert 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 begin insert the end insert 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

(d) This section is not intended to 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.

end insert begin insert

(e) For purposes of this section, “legislative employee” shall
include a former employee of the Legislature.

end insert

9149.37.  

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

SEC. 2.  

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.