BILL ANALYSIS �
AB 2065
Page 1
ASSEMBLY THIRD READING
AB 2065 (Melendez, et al.)
As Amended May 13, 2014
Majority vote
JUDICIARY 10-0 APPROPRIATIONS 17-0
-----------------------------------------------------------------
|Ayes:|Wieckowski, Wagner, |Ayes:|Gatto, Bigelow, |
| |Alejo, Chau, Dickinson, | |Bocanegra, Bradford, Ian |
| |Garcia, Gorell, | |Calderon, Campos, |
| |Maienschein, Muratsuchi, | |Donnelly, Eggman, Gomez, |
| |Stone | |Holden, Jones, Linder, |
| | | |Pan, Quirk, |
| | | |Ridley-Thomas, Wagner, |
| | | |Weber |
|-----+--------------------------+-----+--------------------------|
| | | | |
-----------------------------------------------------------------
SUMMARY : Adds legislators and legislative staff to the
California Whistleblower Protection Act (WPA). Specifically,
this bill :
1)Appears to subject 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.
AB 2065
Page 2
d) Former Members of the Legislature and former staff would
forever be subject to complaints for their actions as
Members of the Legislature 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)Appears to subject Members of the Legislature and legislative
staff to 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)Appears to subject 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)Appears to subject 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;
AB 2065
Page 3
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. It is unclear whether the doctrine of
legislative immunity would cover these complaints.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, 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 estimates annual General Fund costs of $400,000 for
three investigators and a half-time attorney.
COMMENTS : 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
AB 2065
Page 4
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.
This bill would permit "any individual, corporation,
?association, state or local government or agency" to file a
complaint against any Member or employee of the Legislature for
alleged improper governmental activity. Thus, any person -
including any resident of California, any business or
association, or any local government agency - would be entitled
to file a complaint.
"Improper governmental activity" includes, among other things:
"malfeasance, corruption, bribery, fraud and theft," which may
be the author's primary objective, as well as broader concepts
such as "coercion, misuse of government property and willful
omission to perform duty" and conduct that is "wasteful,
incompetent or inefficient." The bill specifically includes as
potential improper governmental activity "any activity by the
Legislature," presumably including legislative acts.
The definition of "employee" includes former employees.
Consequently, former Members of the Legislature and staff would
continue to be subject to potential complaints long after they
have completed their service in the Legislature. There is no
deadline or statute of limitations by which complaints must be
filed so long as they allege improper governmental activity
during the period of service or employment. In addition, all
legislative staff would be covered, regardless of their
responsibilities.
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 in combination appear to permit a very
substantial increase in the volume of complaints to be handled
by the State Auditor. As many observers have noted, the
AB 2065
Page 5
legislative process is inherently inefficient by constitutional
design, and reflects the celebrated "checks and balances" that
are often said to be the genius of our democratic republic. Of
course, many people naturally feel frustrated when government is
unable to solve various social problems or chooses to address
those problems in ways other than that person would prefer. In
light of the nature of the legislative process and the competing
political values of any large and diverse population, it seems
likely that there may be many potential complainants who allege
anonymously over the Internet that a Member of the Legislature
is corrupt, incompetent, inefficient, wasteful, or has willfully
omitted to perform his or her duties.
Moreover, particularly because complaints may be filed
anonymously and confidentially, it would unfortunately appear
impossible to exclude potential complaints that might be
initiated for the nefarious purpose of seeking political
advantage or embarrassment by an individual, business,
association or local government subject to a legislative probe
or engaged in a dispute or rivalry with a Member of the
Legislature. While the State Auditor would not be legally
obligated to investigate every complaint, she or he would be
expected to undertake a serious and thorough assessment of every
complaint. The bill may therefore place significant pressure on
the resources of the State Auditor and impose substantial
additional costs.
The provision permitting public complaints against Members of
the Legislature for alleged improper governmental activities
does not expressly incorporate the doctrine of legislative
immunity as a defense. Members of the Legislature are largely
immune from liability under the longstanding doctrine of
legislative immunity. Case law suggests that legislative
immunity may apply to administrative processes, such as
investigation by the State Auditor, in addition to civil and
criminal court actions, although legislative immunity may be
waived by statute. It is not clear whether this bill intends to
waive legislative immunity with respect to complaints made to
the State Auditor, both because the doctrine of legislative
immunity is not referenced in this section of the bill and
because the bill declares that legislative immunity is intended
to exempt Members of the Legislature from "liability," which the
administrative complaint process does not involve. Indeed, the
digest of the bill prepared by Legislative Counsel states that
AB 2065
Page 6
legislative immunity would protect Members of the Legislature
from "penalties," but does not indicate that the bill precludes
the State Auditor from conducting an investigation and preparing
a report and recommendation.
It is therefore not clear whether, or the extent to which, the
expansion of the WPA to include Members of the Legislature would
prevent the State Auditor from investigating some potential
complaints. To that extent, the bill's promise of reform may be
more apparent than real. Nevertheless, if legislative immunity
is intended to apply to complaints of improper governmental
activity, the bill would require the State Auditor to engage in
complex legal determinations whether an alleged act falls within
the scope of legislative immunity, discussed in more detail
below.
A separate provision of the bill would protect legislative staff
and other state employees against retaliation, and allow for
potential fines and imprisonment. It would also provide for a
civil action against legislative staff for damages by state
employees, although not by employees of the Legislature. Again,
however, Members of the Legislature would be protected by the
doctrine of legislative immunity. The primary object of these
penalties therefore would appear to be legislative staff, unless
they too were found to be protected by legislative immunity, an
issue that is not clear in the author's proposal.
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
FN: 0003680