BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 2065 (Melendez)
As Amended June 15, 2014
Hearing Date: June 24, 2014
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Legislative Employee Whistleblower Protection Act
DESCRIPTION
This bill would enact the Legislative Employee Whistleblower
Protection Act and prohibit a Member of the Legislature or
legislative employee from directly or indirectly using or
attempting to use that person's official authority or influence
to intimidate, threaten, coerce, command, or so attempt, a
legislative employee for the purpose of interfering with the
right of that employee to make a protected disclosure, as
defined. This bill would also prohibit retaliation against that
employee for making a whistleblower complaint and provide a
right of action against a violating Member, subject to the
doctrine of legislative immunity.
(This analysis reflects author's amendments to be offered in
Committee.)
BACKGROUND
The California Whistleblower Protection Act (CWPA) prohibits
state employees and justices and judges from using or attempting
to use their official authority or influence to interfere with
the rights of an employee to make a good faith communication
that discloses information which may evidence an improper
governmental activity, or any condition that may significantly
threaten the health or safety of employees or the public. The
CWPA also provides a process by which the employee who has made
a protected disclosure may file a written complaint alleging
adverse employment actions such as retaliation, reprisal
(more)
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threats, or coercion, with a supervisor or manager and with the
State Personnel Board. The CWPA specifies that justices and
judges are liable in an action for damages brought against him
or her by the injured party, except to the extent the judge or
justice is immune from liability under the doctrine of judicial
immunity.
This bill would similarly provide whistleblower protections for
employees and Members of the Legislature and authorize the
whistleblower to submit a complaint with either house of the
Legislature pursuant to its rules alleging a violation of the
house ethics rules or retaliatory conduct by the Member for
attempting to file the complaint. This bill would also provide
a right of action for a legislative employee who has made a
protected disclosure and suffered an adverse action for making
that disclosure.
CHANGES TO EXISTING LAW
Existing law , the California Whistleblower Protection Act
(CWPA), sets forth the circumstances and procedures under which
a state employee, as defined, may report improper governmental
activities, as defined, or make protected disclosures, as
defined, to the State Auditor, and prohibits retaliation or
reprisal against a state employee for these acts. (Gov. Code
Sec. 8547 et seq.)
Existing law defines "employee" to mean a current or former
employee who was appointed by the Governor, employed or holding
office in a state agency, an employee of the California State
University, appointed by the Legislature to a state board or
commission, or employed by the Supreme Court, a court of appeal,
a superior court, or the Administrative Office of the Courts.
(Gov. Code Sec. 8547.2(a).)
Existing law excludes from that definition of "employee" a
Member or employee of the Legislature. (Gov. Code Sec.
8547.2(a).)
Existing law defines "improper governmental activity" to mean 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
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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. (Gov. Code Sec. 8547.2(c).)
Existing law defines "state agency" to include the University of
California, as specified, and the California State University,
as specified, the Supreme Court, the courts of appeal, the
superior courts, and the Administrative Office of the Courts, as
specified, in the same manner as they apply to a state agency.
(Gov. Code Sec. 8547.2(f).)
Existing law prohibits an employee 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 under the CWPA. (Gov. Code Sec.
8547.3(a).)
Existing law provides that any employee who violates the above
provision may be liable in an action for civil damages brought
against the employee by the offended party. (Gov. Code Sec.
8547.3(c).)
Existing law makes a person who intentionally engages in acts of
reprisal or retaliation in violation of the CWPA 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
Sec. 8547.8.)
Existing law specifies that a justice or judge who intentionally
engages in acts of reprisal, retaliation, threats, coercion, or
similar acts against an employee or applicant for employment for
having made a protected disclosure is subject to a $10,000 fine
and imprisonment, and may be liable in an action for damages
brought against him or her by the injured party, except to the
extent the judge or justice is immune from liability under the
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doctrine of judicial immunity. A person injured by an employee
of the Supreme Court, a court of appeal, a superior court, or
the Administrative Office of the Courts is not required to file
an internal complaint before bringing an action for damages.
(Gov. Code Sec. 8847.13.)
Existing law provides that in any civil action or administrative
proceeding, once it has been demonstrated by a preponderance of
evidence that an activity protected under the CWPA 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 appointing power 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. If the supervisor, manager, or appointing power
fails to meet this burden of proof in an adverse action against
the employee in any administrative review, challenge, or
adjudication in which retaliation has been demonstrated to be a
contributing factor, the employee shall have a complete
affirmative defense in the adverse action. (Gov. Code Secs.
8547.8(e), 8547.10(e), 8547.13(g).)
Existing law provides a process by which a state employee may
file a written complaint alleging adverse employment actions
such as retaliation, reprisal threats, or coercion, with a
supervisor or manager and with the SPB. (Gov. Code Secs.
8547.8, 19683.) 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 Sec. 19683.)
Existing law requires the State Auditor to create a means for
the submission of allegations of improper governmental activity,
and upon receiving specific information that any employee or
state agency has engaged in an improper governmental activity,
the State Auditor is authorized to conduct an investigation of
the matter. (Gov. Code Sec. 8547.5.)
This bill would enact the Legislative Employee Whistleblower
Protection Act and prohibit an employee or Member of the
Legislature from directly or indirectly using or attempting to
use his or her official authority or influence for the purpose
of intimidating, threatening, coercing, commanding, or
attempting to intimidate, threaten, coerce, or command any
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person for the purpose of interfering with the right of the
legislative employee to make a protected disclosure.
This bill would provide that any employee or Member of the
Legislature in violation of that prohibition may be liable in an
action for civil damages brought against the legislative
employee or Member by the offended party.
This bill would not authorize an individual to disclose
information otherwise prohibited by or under law.
This bill would 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.
This bill would authorize a legislative employee to 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 under this bill, 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.
This bill would require that complaint to be filed within one
year of the most recent improper act complained about.
This bill would provide that, except to the extent that a Member
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 legislative employee for having made a protected
disclosure, is subject to a fine of up to $10,000 and up to a
year in county jail, and liable in an action for damages brought
against him or her by the injured party.
This bill would provide that any employee or Member of the
Legislature who engages in acts of reprisal, retaliation,
threats, coercion, or similar acts against a legislative
employee for having made a protected disclosure is liable in an
action for civil damages brought against the employee by the
offended party, except to the extent that a Member of the
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Legislature is immune from liability under the doctrine of
legislative immunity.
This bill would provide that in any civil action, once it has
been demonstrated by a preponderance of evidence that an
activity protected by this bill 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.
This bill would authorize an award by the court of punitive
damages where the acts of the offending party are proven to be
malicious.
This bill would provide that where liability has been
established, the injured party would also be entitled to
reasonable attorney's fees.
This bill would not require a legislative employee to file a
complaint before bringing an action for civil damages.
This bill , for purposes of filing a civil action for retaliation
after having made a protected disclosure, would define
"employee" to include a former employee of the Legislature.
This bill would declare that it would not diminish the rights,
privileges, or remedies of any employee under any other federal
or state law.
COMMENT
1. Stated need for the bill
The author writes:
Currently, employees of the Legislature are not protected
under the California Whistleblower Protection Act [CWPA].
This lack of protection discourages legislative employees from
reporting information relating to improper government
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. . .
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. Recent events involving members of the Legislature have
renewed calls for greater oversight and accountability. Given
staff's close proximity to Members of the Legislature, they
are in a unique position to help provide this improved
accountability. This cannot be expected, however, if they are
not provided protection from retaliation.
AB 2065 would provide the same protection other state workers
receive under the [CWPA] 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.
The California Forward Action Fund, in support, writes:
The [CWPA] has given judicial and executive branch employees
the tools and protections needed to report abuse and waste of
taxpayer money. Unfortunately, under this act, these same
tools and protections are not available to legislative
employees who may have intimate knowledge of abuse happening
inside the Capitol and within the broader California
government. By providing whistleblower protection to these
public servants, the Legislature can establish two precedents
that will improve public trust: 1) the Legislature respects
and honors its employees and recognizes their service to the
public[;] and 2) the Legislature is serious about rooting out
all waste, fraud and abuse within its own institution.
In early May, Senate President pro Tem Darrell Steinberg
announced several ethics reforms his house will pursue through
Senate rules amendments, including whistleblower protection
for Senate staff. Senator Steinberg's proposal is an
acknowledgement by his caucus that whistleblower protection
must be expanded. AB 2065 goes further by ensuring all
legislative employees are protected by the force of law,
including those in the Assembly, the Legislative Analyst's
Office, and the Office of Legislative Counsel.
2. Providing whistleblower protections to employees and Members
of the Legislature
This bill would enact the Legislative Employee Whistleblower
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Protection Act and mirror the whistleblower protections provided
to state and judicial employees, as described below.
a. Use of official authority or influence to interfere with
disclosures
Existing law provides that an employee may not directly or
indirectly attempt to use the official authority or influence
of the employee for the purposes of intimidating, threatening,
coercing, or commanding any person for the purpose of
interfering with the rights conferred by the CWPA. (Gov. Code
Sec. 8547.3.) An employee who violates these provisions may
be liable in an action for civil damages brought against the
employee by the offended party. (Id.) This bill would also
provide these protections to employees and Members of the
Legislature.
Existing law also prohibits retaliatory actions against a
state or judicial employee who has submitted a protected
disclosure and authorizes that employee to file a civil
action. (Gov. Code Secs. 8547.8(c), 8547.13(e).) Similarly,
this bill would also provide a civil action for a legislative
employee who is retaliated against after making a protected
disclosure.
b. Penalties and liability
Pursuant to this bill, a legislative employee or Member who is
found to have retaliated, threatened, or engaged in other
similar acts against another employee or applicant for having
made a protected disclosure would be subject to a fine not to
exceed $10,000 and imprisonment in a county jail for up to one
year. Further, the employee found to be in violation of this
bill would also be subject to civil liability in an action for
damages brought against him or her by the injured party.
Punitive damages, as well as attorney's fees would also be
available to the injured party. As previously stated, these
penalties and liability are substantively similar to those
currently prescribed by the CWPA. However, the penalties and
civil liability shall only apply to Members of the Legislature
to the extent that they are not immune from liability under
the doctrine of legislative immunity.
The doctrine of legislative immunity, established under both
federal and California law, provides that legislators may not
be called to court to defend their legislative activities.
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(See Steiner v. Superior Court (1996) 50 Cal.App.4th 1771,
1784-85 ("legal action may not be taken against [legislators]
for their activities involving planning or enacting
legislation"); Dombrowski v. Eastland (1967) 387 U.S. 82, 85
("legislators engaged in the sphere of legitimate legislative
activity, should be protected not only from the consequences
of litigation's results but also from the burden of defending
themselves").) Mirroring the immunity included in the CWPA
for judicial officers, Members would not lose the legislative
immunity they traditionally enjoy for legislative functions,
but could potentially be subject to penalties and liability
for violations committed in the course of their administrative
duties.
c. Same evidentiary requirements as for other employees
protected by the CWPA
Existing law provides that in any civil action, once it has
been demonstrated by a preponderance of evidence that an
activity protected under the CWPA 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 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. (Gov. Code Secs. 8547.8(e), 8547.10(e),
8547.12(e), 8547.13(g).) This bill continues these
evidentiary burden shifting provisions.
It should be noted that, in comparison, state, University of
California, California State University, and judicial
employees, if the supervisor, manager, or appointing power
fails to meet this burden of proof in an adverse action
against the employee in any administrative review, challenge,
or adjudication in which retaliation has been demonstrated to
be a contributing factor, the employee has a complete
affirmative defense in the adverse action.
3. Complaints to be filed with either house of the Legislature
The CWPA authorizes the State Auditor to receive complaints from
state employees and members of the public who wish to report an
improper governmental activity. (Gov. Code Sec. 8547.4.) An
"improper governmental activity" is defined, as any action that
violates the law, is economically wasteful, or involves gross
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misconduct, incompetency, or inefficiency. (Gov. Code Sec.
8547.2.) The complaints received by the State Auditor shall
remain confidential, and the identity of the complainant may not
be revealed without the permission of the complainant, except to
an appropriate law enforcement agency conducting a criminal
investigation. (Gov. Code Sec. 8547.5.) If, after
investigating, the State Auditor finds that an employee may have
engaged or participated in improper governmental activities, the
State Auditor must prepare an investigative report and send a
copy to the employee's appointing power. (Gov. Code Sec.
8547.4.) If appropriate, the State Auditor may also
confidentially report the matter to the Attorney General, the
Legislature, or any other entity having jurisdiction over the
matter, or issue a public report on the matter, keeping
confidential the identities of the individuals involved. (Gov.
Code Sec. 8547.7.) The State Auditor does not have enforcement
powers and cannot order a department or official to take any
action. (Id.)
Within 60 days of receiving the State Auditor's investigative
report, an appointing power must either serve a notice of
adverse action upon the employee or set forth in writing its
reasons for not taking adverse action. (Gov. Code Sec. 8547.4.)
The appointing power must submit its written reasons for not
taking adverse action to the State Auditor and State Personnel
Board (SPB), and the SPB may take adverse action as specified.
An employee who is served with a notice of adverse action may
appeal to the SPB. (Id.)
Although the CWPA authorizes a state or judicial branch employee
to submit a copy of the employee complaint to the SPB, this bill
would instead follow the complaint procedures for the University
of California and California State University employees, which
do not authorize those employees to submit a complaint copy to
the SPB. Instead, this bill would authorize the legislative
employee to file a written complaint alleging actual or
attempted acts of prohibited conduct with either house of the
Legislature pursuant to its rules. Presumably, this bill
excludes SPB involvement because of concerns that it may be
inappropriate to grant an executive branch agency authority over
personnel decisions in a separate branch of government. For
similar reasons, this bill was recently amended to remove the
California State Auditor from being required to receive
legislative employee complaints.
4. Concerns raised
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The California State Auditor raised concerns with this bill and
asserted that "[i]ndependence is the hallmark of the California
State Auditor's office and if my work were to begin
investigating the staff [complaints] of those who not only
direct much of our audit work, but who approve our budget,
recommend the appointment or reappointment of the State Auditor
to the Governor every four years, and have sole authority to
remove the State Auditor from office, this would severely
undermine and erode that independence. The bottom line is that
we cannot and should not investigate our client - the
Legislature. If AB 2065 is amended to remove any involvement of
my office, I would not oppose the bill."
To address the concerns raised by the California State Auditor,
this bill was recently amended to instead authorize employee
complaints to be submitted to either house of the Legislature
pursuant to its rules.
5. Author's amendments
The author offers the following amendments (which mirror the
CWPA) to provide a right of action against a legislative
employee or Member who interferes with a legislative employee's
right to file a whistleblower complaint. Additionally, the
author offers the following amendment to provide the same right
to bring a civil action provided for state and judicial
employees for adverse actions taken against the employee
following the filing of a whistleblower complaint. Also, in
order to clarify that a former employee of the Legislature who
has been retaliated against for making a protected disclosure
would also have a civil action for violations of this act, the
author offers the following amendment to provide that
"legislative employee" would also include a former legislative
employee for purposes of an action related to adverse actions
taken after the protected disclosure is made.
Author's amendments :
1. On page 3, below line 33, insert: "(b) Any employee or
Member of the Legislature who violates subdivision (a) may
be liable in an action for civil damages brought against
the employee or Member by the offended party."
2. On page 4, in line 1, strike and replace "(b)" with
"(c)"
3. On page 4, in line 4, strike and replace "(c)" with
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"(d)"
4. On page 4, in line 22, strike and replace "violates
Section 9149.33" and insert "intentionally engages in acts
of reprisal, retaliation, threats, coercion, or similar
acts against a legislative employee for having made a
protected disclosure,"
5. On page 4, in line 28, strike and replace "violates
Section 9149.33" and insert "intentionally engages in acts
of reprisal, retaliation, threats, coercion, or similar
acts against a legislative employee for having made a
protected disclosure
6. On page 5, between lines 5 and 6, 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.
(e) For purposes of this section, "legislative employee"
shall include a former employee of the Legislature."
Support : California Forward Action Fund
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
AB 2256 (Portantino, 2012) would have provided protections for
legislative employees and Members under the California
Whistleblower Protection Act (CWPA). AB 2256 failed passage in
the Assembly Committee on Judiciary.
AB 1378 (Portantino, 2012) is substantially similar to this bill
and would have provided protections for legislative employees
and Members under the CWPA. AB 1378 died in the Assembly
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Committee on Appropriations.
AB 1749 (Lowenthal and Strickland, Ch. 160, Stats. 2010)
provided judicial branch employees with CWPA protections.
SB 650 (Yee, Ch. 104, Stats. 2010) revised the CWPA so that
complaints filed by University of California employees are
treated the same as those filed by California State University
employees.
SB 220 (Yee, 2010), among other things, would have expanded the
application of the CWPA to former state employees who have been
covered by the CWPA during their employment. Those provisions
were included in AB 567 (Villines, Ch. 452, Stats. 2009), and SB
220 was subsequently amended to deal with a different subject
matter.
SB 219 (Yee, 2009) was substantively similar to SB 650 but was
vetoed by Governor Schwarzenegger because of the concern that
the bill would discourage University of California employees
from exhausting administrative remedies before filing an action.
AB 567 (Villines, Ch. 452, Stats. 2009), among other things,
added an individual appointed by the Legislature to a state
board or commission and who is not a Member or employee of the
Legislature to the list of state employees covered by the CWPA
and provided that state employee includes any former employee
who met specified criteria during his or her employment.
SB 1267 (Yee, 2007), among other things, would have authorized
former state employees to file a complaint under the CWPA and
revised some of the provisions relating to the filing,
investigation, hearing, and processing of complaints filed by
state employees under the CWPA. SB 1267 was held under
submission in the Senate Committee on Appropriations.
Prior Vote :
Assembly Floor (Ayes 78, Noes 0)
Assembly Committee on Appropriations (Ayes 17, Noes 0)
Assembly Committee on Rules (Ayes 9, Noes 0)
Assembly Committee on Judiciary (Ayes 10, Noes 0)
Assembly Committee on Rules (Ayes 9, Noes 0)
**************
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