BILL ANALYSIS �
AB 2065
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Date of Hearing: May 19, 2014
ASSEMBLY COMMITTEE ON RULES
Richard S. Gordon, Chair
AB 2065 (Melendez/Gorell) - As Amended: May 13, 2014
SUBJECT : California Whistleblower Protection Act: Legislature
SUMMARY : Adds legislators and legislative staff to the
California Whistleblower Protection Act (WPA). Specifically,
this bill :
1)Subjects Members of the Legislature and legislative staff to
complaints of wrongdoing alleging "improper governmental
activity" including, among other things: malfeasance,
corruption, fraud, coercion, misuse of government property,
and willful omission to perform duty, as well as conduct that
is wasteful, incompetent or inefficient. Improper
governmental activity under the bill is said to include "any
activity by the Legislature," presumably including purely
legislative acts that may otherwise be shielded under the
constitutional doctrine of legislative immunity.
a) These complaints can be brought by "any individual,
corporation, ? association, state or local government or
agency" including any member of the general public.
b) Complaints are to be received and investigated by the
State Auditor via the Internet and other means.
c) Complainants are entitled to complete anonymity and
confidentiality.
d) Former Members of the Legislature and former staff would
forever be subject to complaints for their actions as
Members or staff after their term of office or employment
expires; there is no statute of limitations on when these
complaints can be filed.
e) Under the bill, these administrative complaints are not
expressly precluded by the doctrine of legislative immunity
as other provisions of the bill are, although legislative
immunity may in fact apply to some acts.
2)Subjects Members of the Legislature and legislative staff to
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law suits by any person alleging that the legislator or staff
person directly or indirectly used or attempted to use his or
her official authority or influence for the purpose of
intimidating, threatening, coercing or commanding - or
attempting to intimidate, threaten, coerce or command - any
person for the purpose of interfering with the rights
conferred pursuant to the Whistleblower Protection Act - e.g.,
filing a complaint, pursuing an investigation, filing a law
suit, etc. A violation of this prohibition would be subject
to a potential civil action for damages by the offended party.
However, Members of the Legislature would be protected under
the doctrine of legislative immunity. It is not clear whether
legislative staff would also be protected by this doctrine.
3)Subjects Members of the Legislature, as well as legislative
staff, to a fine up to $10,000 and imprisonment in the county
jail for up to one year for reprisal, retaliation, threats,
coercion, or similar improper acts against an employee of the
Legislature or applicant for employment with the Legislature.
However, Members of the Legislature would be protected under
the doctrine of legislative immunity, while it is unclear
whether legislative staff would likewise be similarly immune.
4)Subjects Members of the Legislature, as well as legislative
staff, to civil law suits for damages, punitive damages and
attorney's fees for reprisal, retaliation, threats, coercion,
or similar improper acts against a State (non-legislative)
employee or applicant for having made a protected disclosure.
However, Members of the Legislature would be protected under
the doctrine of legislative immunity; legislative staff may or
may not be covered by legislative immunity.
5)Permits Members of the Legislature to invoke the WPA and
involve the State Auditor in complaints against the
Legislature, other Members (current and former) and
legislative staff. It is unclear whether the doctrine of
legislative immunity would cover these complaints either for
Members or for legislative staff.
EXISTING LAW
1)Prohibits, pursuant to the California Whistleblower Protection
Act (WPA), "improper governmental activities" by state
agencies and employees. (Govt. Code Sections 8547.2, 8547.4.)
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2)Defines "improper governmental activity" as 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. (Govt. Code
Section 8547.2(c).)
3)Defines employee to include former employees, but specifically
excludes Members and staff of the Legislature from the
definitions of "employee" and "state agency." (Govt. Code
Section 8547.2(a), (f).)
4)Directs the State Auditor to accept complaints by mail and via
Internet, and to conduct investigations of alleged improper
governmental activities, and authorizes the State Auditor to
issue reports of its findings including recommended corrective
actions if it finds reasonable cause to believe an improper
governmental activity has occurred. (Govt. Code Sections
8547.4, 8547.5, 8547.7.)
5)Provides that the State Auditor shall permit complaints to be
filed anonymously and shall keep the identity of all
complainants and witnesses confidential unless given the
express permission of the person, except that the State
Auditor may make the disclosure to a law enforcement agency
that is conducting a criminal investigation. (Govt. Code
Section 8547.5.)
6)Requires the State Auditor to keep confidential every
investigation, including, but not limited to, all
investigative files and work product, except that the State
Auditor may issue a public report of an investigation that has
substantiated an improper governmental activity, keeping
confidential the identity of the employee or employees
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involved. (Govt. Code Section 8547.7.)
7)Requires the employing state agency to take adverse employment
action against any employee found by the State Auditor to have
engaged or participated in improper governmental activity or
to set forth in writing its reasons for not taking adverse
action, and likewise requires the employing agency to report
on actions it has taken to implement the Bureau of State
Audits' recommendations. (Govt. Code Sections 8547.4,
8547.7.)
8)Prohibits state employees and officers, other than Members and
employees of the Legislature, from directly or indirectly
using or attempting 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 the WPA. (Govt. Code
Section 8547.3.)
9)Defines "use of official authority or influence" to include
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. (Govt. Code Section
8547.3.)
10)Provides that any employee who violates this prohibition
against use of authority or influence to be liable in an
action for civil damages brought by the offended person.
(Govt. Code Section 8547.3.)
11)Makes a person who intentionally engages in acts of reprisal
or retaliation in violation of the WPA subject to a fine of up
to $10,000 and up to a year in county jail, and if that person
is a civil service employee, subjects that person to
discipline by adverse action. A person injured by such acts
may bring an action for damages only after filing a complaint
with the State Personnel Board (SPB) and the SPB issued, or
failed to issue, findings of its hearings or investigation.
(Gov. Code Section 8547.8.)
12)Under the constitutional doctrine of legislative immunity,
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prohibits legal action against legislators for legislative
activity and other acts within the sphere of legislative
activity. (Tenney v. Brandhove, 341 U.S. 367, 375(1951);
Bogan v. Scott-Harris, 523 U.S. 44, 49(1998); Steiner v.
Superior Court, 50 Cal.App.4th 1771, 1784 (1996).))
13)Provides a process by which a state employee may file an
optional written complaint alleging adverse employment actions
such as retaliation, reprisal threats, or coercion, with a
supervisor or manager and with the SPB. Existing law requires
the SPB to initiate an investigation or a proceeding within 10
working days of submission of a written complaint, and to
complete findings of the investigation or hearing within 60
working days thereafter. (Gov. Code Section 19683.)
14)Provides that no public or private employer may make, adopt,
or enforce any rule, regulation, or policy preventing an
employee from disclosing information to a government or law
enforcement agency, where the employee has reasonable cause to
believe that the information discloses a violation of state or
federal statute, or a violation or noncompliance with a state
or federal rule or regulation. (Labor Code Section 1102.5.)
15)Likewise prohibits public and private employers from
retaliating against an employee for: (a) disclosing
information to a government or law enforcement agency, where
the employee has reasonable cause to believe that the
information discloses a violation of state or federal statute,
or a violation or noncompliance with a state or federal rule
or regulation; (b) refusing to participate in an activity that
would result in a violation of state or federal statute, or a
violation or noncompliance with a state or federal rule or
regulation; or (c) having exercised his or her rights to do so
in any former employment. (Labor Code Section 1102.5.)
16)Provides that any employer who violates Labor Code Section
1102.5 is guilty of a misdemeanor punishable, in the case of
an individual, by imprisonment in the county jail not to
exceed one year or a fine not to exceed $1,000 or both and, in
the case of a corporation, by a fine not to exceed $5,000, and
provides that in all prosecutions under this chapter, the
employer is responsible for the acts of his managers,
officers, agents, and employees. (Labor Code Sections
1103-04.)
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FISCAL EFFECT : Unknown
COMMENTS : In support of the bill the author states:
Currently, employees of the Legislature are not protected
under the California Whistleblower Protection Act. This
lack of protection discourages legislative employees from
reporting information relating to improper governmental
activity. Every violation of the law by a public official
is also a violation of the public trust. The Legislature
has a responsibility to protect the integrity of the
institution by creating an atmosphere of transparency and
accountability. Given their proximity to members of the
Legislature, legislative employees have a unique
opportunity to help provide this accountability by
reporting any suspicious or unethical behavior. This will
not take place, however, if those employees are not
afforded protections from intimidation or coercion.
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. Employees of
the Legislature are not covered under this act, nor do they
have a process for reporting questionable governmental
behavior. AB 2065 would provide the same protection other
state workers receive under the California Whistleblower
Protection Act to employees of the Legislature.
The bill would authorize an employee of 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.
Recent Amendments: The bill has been recently amended to make
it identical to version 97 of AB 1378 of 2012.
REGISTERED SUPPORT / OPPOSITION :
AB 2065
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Support
California Forward Action Fund
Opposition
None on file
Analysis Prepared by : Mukhtar Ali / RLS. / (916) 319-2800