Bill Text: CA AB1788 | 2015-2016 | Regular Session | Amended
Bill Title: Legislature: Legislative Employee Whistleblower
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2016-11-30 - From Senate committee without further action. [AB1788 Detail]
Download: California-2015-AB1788-Amended.html
BILL NUMBER: AB 1788 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 20, 2016
INTRODUCED BY Assembly Member Melendez
FEBRUARY 4, 2016
An act to add Article 11 (commencing with Section 9149.30) to
Chapter 1.5 of Part 1 of Division 2 of Title 2 of the Government
Code, relating to the Legislature.
LEGISLATIVE COUNSEL'S DIGEST
AB 1788, as amended, Melendez. Legislature: Legislative Employee
Whistleblower Protection Act.
Existing law provides procedures for a person to file a complaint
alleging violations of legislative ethics. Existing law also
authorizes each house of the Legislature to adopt rules for its
proceedings and to select committees necessary for the conduct of its
business.
This bill would prohibit interference with the right of
legislative employees, as defined, to make protected disclosures of
ethics violations and would prohibit retaliation against legislative
employees who have made protected disclosures. This bill would
establish a procedure for legislative employees to report violations
of the prohibitions to the Legislature. The bill would also impose
civil and criminal liability on a person who interferes with a
legislative employee's right to make a protected disclosure or who
engages in retaliatory acts, as specified.
By creating new crimes, the bill would impose a state-mandated
local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Article 11 (commencing with Section 9149.30) is added
to Chapter 1.5 of Part 1 of Division 2 of Title 2 of the Government
Code, to read:
Article 11. Legislative Employee Whistleblower Protection Act
9149.30. This article shall be known and may be cited as the
Legislative Employee Whistleblower Protection Act.
9149.31. The Legislature finds and declares that legislative
employees should be free to report ethical violations without fear of
retribution.
9149.32. For the purposes of this article, the following terms
have the following meanings:
(a) "Legislative employee" means an individual, other than a
Member of either house of the Legislature, who is currently employed
by either house of the Legislature.
(b) "Protected disclosure" means the filing of a complaint with
any of the following:
(1) The Joint Legislative Ethics Committee pursuant to Section
8944, alleging a violation by a member of the Legislature.
(2) The Senate Committee on Legislative Ethics, alleging that a
Member, officer, or employee of the Senate violated any standard of
conduct, as defined by the standing rules of the Senate.
(3) The Assembly Legislative Ethics Committee, alleging that a
Member of the Assembly violated any standard of conduct, as defined
by the standing rules of the Assembly.
(4) The Assembly Rules Committee, alleging that an employee of the
Assembly violated Article 2 of Chapter 1 of this part.
(5) An ethics ombudsperson designated by either house of the
Legislature to receive information about potential ethical
violations.
(c) "Use of official authority or influence" includes 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 appointment, promotion, transfer, assignment, performance
evaluation, suspension, or other disciplinary action.
9149.33. (a) A Member of the Legislature or legislative employee
shall not directly or indirectly use or attempt to use that person's
official authority or influence to intimidate, threaten, coerce, or
command, or attempt 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.
(b) 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 is 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.
(c) 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 is liable in a civil action for damages brought by a
legislative employee.
(d) This section shall not be construed to authorize an individual
to disclose information otherwise prohibited by or under law.
(e) 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 from the fact that the person has made a
protected disclosure.
9149.34. (a) A legislative employee may
file a written complaint with his or her supervisor or manager, or
with any other officer designated by the house of the Legislature by
which he or she is employed, alleging actual or attempted acts of
reprisal, retaliation, threats, coercion, or similar improper acts
prohibited by Section 9149.33 for having made a protected disclosure.
The
(b) 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.
(c) A recipient of a written complaint submitted pursuant to
subdivision (a) shall keep the identity of complainants and witnesses
confidential unless expressly authorized by those persons to reveal
them, except if requested by a law enforcement agency conducting a
criminal investigation.
(d) Records relating to an investigation conducted pursuant to
subdivision (a), including investigative files and work product, are
confidential, except if requested by a law enforcement agency
conducting a criminal investigation.
(e) This section does not limit the authority conferred upon the
Attorney General, any state or federal law enforcement agency, or any
other commission, department, or agency authorized to investigate
the Legislature.
9149.35. (a) Except to the extent that a Member of the
Legislature is immune from liability under the doctrine of
legislative immunity, 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 is
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.
(b) For purposes of this section, "legislative employee" includes
a former employee of the Legislature if the complaint is filed within
one year of the most recent improper act complained about.
9149.36. (a) 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
intentionally engages in acts of reprisal, retaliation, threats,
coercion, or similar acts against a legislative employee for having
made a protected disclosure is liable in a civil action for damages
brought by a legislative employee.
(b) (1) In any civil action, once it has been demonstrated by a
preponderance of the evidence that an activity protected by this
article was a contributing factor in the alleged retaliation against
a legislative employee, the burden of proof is 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.
(2) Punitive damages may be awarded by the court if the acts of
the offending party are proven to be malicious. If liability is
established, the injured party is also entitled to reasonable
attorney's fees as provided by law.
(c) A legislative employee is not required to file a complaint
pursuant to Section 9149.34 before bringing an action for civil
damages.
(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" includes
a former employee of the Legislature if the complaint is filed within
one year of the most recent improper act complained about.
9149.37. This article does not diminish the rights, privileges,
or remedies of a legislative employee under any other federal or
state law.
SEC. 2. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
