BILL ANALYSIS �
Senate Appropriations Committee Fiscal Summary
Senator Kevin de Le�n, Chair
AB 2065 (Melendez) - Legislative Employees
Amended: July 1, 2014 Policy Vote: Jud 7-0
Urgency: No Mandate: No
Hearing Date: August 4, 2014
Consultant: Maureen Ortiz
This bill meets the criteria for referral to the Suspense File.
Bill Summary: AB 2065 enacts the Legislative Employee
Whistleblower Protection Act.
Fiscal Impact:
Potential increase in administrative costs (General)
Depending on the number of complaints that are filed, there
could be an increase in cost pressures for additional staff in
the Senate and Assembly Rules Committees for investigative and
other administrative purposes.
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 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.
Legislative employees are excluded from the California
Whistleblower Protection Act.
AB 2065 (Melendez)
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Proposed Law: AB 2065 establishes the Legislative Employee
Whistleblower Protection Act which provides for the following:
1) Prohibits a member of the Legislature or legislative
employee from directly or indirectly using or attempting 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.
2) Except to the extent that a Member of the Legislature is
immune from liability under the doctrine of legislative
immunity, makes violations of the Act 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.
3) 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.
4) Allows 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 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.
5) Provides that in addition to all other penalties
provided by law, a person who intentionally engages in acts
of reprisal, retaliation, threats, coercion, or similar
acts against a legislative employee for having made a
protected disclosure shall be liable in a civil action for
damages brought by a legislative employee; and places the
burden of proof on the offending party to demonstrate by
clear and convincing evidence that the alleged action would
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have occurred for legitimate, independent reasons even if
the legislative employee had not made a protected
disclosure.
AB 2065 provides that it 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.
Staff Comments: Recently, the Senate adopted Senate Resolution
43 and Senate Resolution 45. SR 43, among other things, does
the following:
a) Authorizes the appointment of an ethics ombudsperson to
facilitate the receipt of information about potential
ethical violations, and to assist the Senate in providing
remedies for retaliatory conduct to ensure that an
informant or complainant does not suffer adverse
consequences with respect to his or her employment.
b) Provides confidential accessibility to the ombudsperson,
and requires the establishment of a public hotline
telephone number for purposes of contacting the
ombudsperson.
c) Specifies that at least once in each biennial session,
each Senator will attend an individual training or review
session conducted by the ombudsperson.
d) Prohibits retaliation against an employee of the Senate
for reporting information to the Senate Committee on Rules,
the Senate Committee on Legislative Ethics, or any
government or law enforcement agency regarding a possible
violation of the Senate Standards of Conduct, as specified.
SR 45 updates the Standards of Conduct of the Senate to require
each Senator to conduct himself/herself so as to justify the
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high trust reposed in him/her by the people and to promote
public confidence in the integrity of the Senate.
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
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.
Staff notes that Section 9149.33(e) of AB 2065 states, in part,
that it is not intended to prevent a supervisor, manager, or
other officer of the Legislature from taking a personnel action
that he or she believes is justified on the basis of evidence
separate and apart from the fact that the person has made a
protected disclosure. It is unclear how this will be
implemented under circumstances where staff has an "at-will"
contractual relationship under which an employee can be
dismissed for any reason - with or without cause- and without
warning. This bill is patterned after the California
Whisteblower Protection Act that applies similar protections to
state and judicial employees who for the most part participate
in the collective bargaining process where the normal standard
for dismissal is that the employer must have a just cause.