BILL ANALYSIS �
AB 2065
Page 1
Date of Hearing: May 21, 2014
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Mike Gatto, Chair
AB 2065 (Melendez and Gorell) - As Amended: May 13, 2014
Policy Committee:
JudiciaryVote:10-0
Rules 9-0
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
This bill adds legislators and legislative staff to the
California Whistleblower Protection Act (WPA). Specifically,
this bill:
1)Subjects current and former members of the Legislature and
legislative staff to complaints of wrongdoing alleging
"improper governmental activity," as defined. Pursuant to
current law, the State Auditor is charged with investigating
all such complaints.
2)Prohibits a member of the Legislature from making a complaint,
pursuant to (1) against another legislator or legislative
employee.
3)Subjects members of the Legislature and legislative staff to
lawsuits 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.,
to file a complaint, pursue an investigation, file a lawsuit,
etc. Prohibits members of the Legislature filing such an
action based on an allegation against another member or a
legislative employee.
4)Subjects members of the Legislature and legislative staff to a
fine up to $10,000 and imprisonment in county jail for up to
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one year for reprisal, retaliation, threats, coercion, or
similar improper acts against an employee of, or applicant for
employment with, the Legislature.
5)Subjects members of the Legislature and 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 non-legislative state employee for
having made a protected disclosure.
6)Exempts members of the Legislature from (3), (4), and (5) to
the extent they are provided immunity under the doctrine of
legislative immunity.
FISCAL EFFECT
The State Auditor is required to receive, evaluate and
investigate every complaint as deemed appropriate, and to
prepare a written report if she or he finds reasonable cause to
believe that improper governmental activity may have occurred.
The expansive and imprecise nature of the term "improper
governmental activity," the broad pool of potential
complainants, and the open-ended time period for filing
complaints would permit a substantial increase in the volume of
complaints to be handled by the auditor, who while not legally
obligated to investigate every complaint, would be expected to
undertake a serious and thorough assessment of every complaint.
The auditor's preliminary estimate is ongoing General Fund
costs of $400,000 for three investigators and a half-time
attorney.
COMMENTS
1)Purpose . The WPA authorizes the State Auditor to receive and
investigate complaints from state employees and members of the
public wishing to report an improper governmental activity.
State employees who file a complaint are entitled to
protection against retaliation by their employers for filing
the complaint. According to the author, the lack of
protection, pursuant to the WPA, discourages legislative
employees from reporting information relating to improper
governmental activity. "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
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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."
2)The WPA 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 (a) 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, (b) 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 (c) is
economically wasteful, involves gross misconduct,
incompetency, or inefficiency.
3)Prior Legislation . In January 2012, AB 1378 (Portantino), an
identical bill, was held on Suspense in this committee.
Analysis Prepared by : Chuck Nicol / APPR. / (916) 319-2081