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AB-2256 California Legislature Whistleblower Protection Act.(2011-2012)

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AB2256:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2011–2012 REGULAR SESSION

Assembly Bill
No. 2256


Introduced  by  Assembly Member Portantino

February 24, 2012


An act to add Article 11 (commencing with Section 9149.50) 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 2256, as introduced, Portantino. California Legislature Whistleblower Protection Act.
Existing law, the California Whistleblower Protection Act, prohibits a state employee from using his or her official authority or influence to discourage or retaliate against any person in order to interfere with the right of that person to disclose evidence of an improper government activity. The act requires the State Auditor to investigate disclosures of improper government activities. The act expressly does not apply to an employee who is a Member or employee of the Legislature.
This bill would enact, and would require the Fair Political Practices Commission to administer, the California Legislature Whistleblower Protection Act. The act would prohibit a Member or employee of the Legislature from directly or indirectly using or attempting to use his or her official authority or influence to retaliate, threaten, coerce, or engage in any similar improper act for the purpose of interfering with the right of an employee of the Legislature to make a protected disclosure of improper governmental activity or to refuse an illegal order, as defined. The act would authorize a current, prospective, or former employee of the Legislature, as specified, within one year of the most recent improper act complained of, to file a written complaint with his or her supervisor, manager, or other officer designated by the Senate Committee on Rules or the Assembly Committee on Rules alleging actual or attempted violations of these prohibited acts. The act would provide that any Member or employee of the Legislature who intentionally engages in these prohibited acts is subject to, except as specified, a civil action brought by the injured party in addition to specified civil and criminal penalties.
The act would require the commission to create the means for the submission of allegations of improper governmental activities to the commission, and would authorize the commission to investigate the allegations or refer them to the Senate Committee on Rules or the Assembly Committee on Rules, the Attorney General, or the appropriate district attorney for investigation. The act would require the commission, if it investigates an allegation and determines that a Member or employee of the Legislature may have engaged or participated in such activities, to prepare an investigative report and send a copy to the Senate Committee on Rules or the Assembly Committee on Rules, as applicable. The act would also authorize the commission, as it deems appropriate, to send a copy of the investigative report to other entities.
This bill would impose a state-mandated local program by creating additional crimes.
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   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares all of the following:
(a) The California Whistleblower Protection Act prohibits a state employee from using his or her official authority 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. The Legislature has passed legislation exempting itself and its employees from this prohibition.
(b) The California Whistleblower Protection Act requires the State Auditor to investigate and report on improper state governmental activities. The State Auditor has maintained that she will not investigate California Whistleblower Protection Act violation allegations against Members or employees of the Legislature because the Legislature is one of the State Auditor’s clients.
(c) The California Whistleblower Protection Act authorizes a state employee or applicant for state employment who files a written complaint alleging reprisal, retaliation, or similar prohibited acts to also file a copy of the written complaint with the State Personnel Board, together with a sworn statement that the complaint is true, under penalty of perjury. The act provides that any person who intentionally engages in acts of reprisal, retaliation, or similar prohibited acts against a state employee or applicant for state employment for having made a protected disclosure is subject to punishment for a misdemeanor, and shall be liable in an action for civil damages brought by the injured party. The Legislature has exempted itself from these provisions and, therefore, legislative employees have no protection against reprisal or retaliation for reporting fraud, waste, criminal acts, abuse, or other improper governmental activities.
(d) There currently is no place where employees of the Legislature can report fraud, waste, criminal acts, abuse, or other improper governmental activities anonymously and without fear of reprisal or retaliation. The lack of a forum to anonymously disclose improper governmental activities creates an environment of secrecy and closed government in the Legislature that serves to ensure that no corrective action or measures are taken.
(e) It is the intent of the Legislature that its decisions be made openly. If there are instances of fraud, waste, criminal acts, abuse, or other improper governmental activities, it is the policy of the Legislature that these be reported and corrected. The Legislature actively seeks openness and accountability in government. Employees of the Legislature need to be free to report these abuses with the same protections as other state employees.

SEC. 2.

 Article 11 (commencing with Section 9149.50) is added to Chapter 1.5 of Part 1 of Division 2 of Title 2 of the Government Code, to read:
Article  11. California Legislature Whistleblower Protection Act

9149.50.
 This article shall be known and may be cited as the California Legislature Whistleblower Protection Act.

9149.51.
 (a) The Legislature finds and declares that employees of each house of the Legislature should be free to report waste, fraud, abuse of authority, violations of law, or threats to the public without fear of retribution. The Legislature further finds and declares that legislative employees best serve the citizens of this state when they can be candid and honest without reservation in conducting the people’s business. Employees of each house of the Legislature have an affirmative duty to disclose or report improper governmental activity.
(b) The Legislature finds and declares that access to information concerning the conduct of the people’s business by the Legislature is a fundamental and necessary right of every citizen in this state. It is the intent of the Legislature that the Legislature conduct the people’s business in a manner that is free from improper governmental activity. To this end, the Legislature encourages and requires that instances of fraud, waste, abuse of authority, violations of law, or threats to public safety be reported to an independent entity for review and action.

9149.52.
 For the purposes of this article, the following terms have the following meanings:
(a) “Illegal order” means a directive to violate or assist in violating a federal, state, or local law, rule, or regulation, or an order to work or cause others to work in conditions outside of their line of duty that would unreasonably threaten the health or safety of employees or the public.
(b) “Improper governmental activity” means an activity of a Member or employee of either house of the Legislature that is undertaken in the performance of the Member’s or employee’s duties, whether or not that activity is within the scope of his or her employment, and is in violation of any state or federal law or regulation, including corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse of government property, or willful omission to perform a duty, or that is economically wasteful or involves gross misconduct, incompetency, or inefficiency.
(c) “Protected disclosure” means a good faith communication, including a communication based on, or when carrying out, job duties, that discloses or demonstrates an intention to disclose information that may evidence (1) an improper governmental activity, or (2) a condition that may significantly threaten the health or safety of employees or the public if the disclosure or intention to disclose was made for the purpose of remedying that condition. Protected disclosure specifically includes a good faith communication to the Fair Political Practices Commission alleging an improper governmental activity and any evidence delivered to the commission in support of the allegation. “Protected disclosure” also includes a complaint made to the Commission on Judicial Performance.

9149.53.
 (a) (1) A Member or employee of either house of the Legislature shall not directly or indirectly use or attempt to use his or her official authority or influence to retaliate, threaten, coerce, or engage in any similar improper act for the purpose of interfering with the right of an employee of either house of the Legislature to make a protected disclosure of improper governmental activity or to refuse an illegal order.
(2) For the purposes of this subdivision, the 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.
(b) An employee of either house of the Legislature or applicant for employment with either house of the Legislature may file a written complaint with his or her supervisor, manager, or other officer designated for that purpose by the Senate Committee on Rules or the Assembly Committee on Rules, as applicable, alleging actual or attempted acts of reprisal, retaliation, threats, coercion, or similar improper acts prohibited by subdivision (a), together with a sworn statement that the contents of the complaint are true, or are believed by the affiant to be true, under penalty of perjury. The complaint shall be filed within one year of the most recent improper act complained about. The Senate Committee on Rules and the Assembly Committee on Rules shall each designate an officer to receive complaints pursuant to this subdivision. A former employee of either house of the Legislature may file a complaint pursuant to this subdivision if the alleged acts complained of occurred on or after January 1, 2013.
(c) 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 an act prohibited by subdivision (a) is subject to all of the following:
(1) (A) A civil action for damages brought against him or her by the injured party. 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 shall also be entitled to reasonable attorney’s fees.
(B) In any civil action pursuant to this paragraph, once it has been demonstrated by a preponderance of evidence that an activity protected by this article was a contributing factor in the alleged reprisal, retaliation, threat, coercion, or other similar improper act against a former, current, or prospective employee of the Legislature, 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 and independent reasons even if the employee had not engaged in a protected disclosure or refused an illegal order.
(2) A fine not to exceed ten thousand dollars ($10,000).
(3) Imprisonment in a county jail for a period not to exceed one year.
(d) This section does not prevent a Member or employee of either house 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 employee of either house of the Legislature or applicant for employment with either house of the Legislature if the Member or employee 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 or refused an illegal order.
(e) This article does not diminish the rights, privileges, or remedies of any employee under any other federal or state law, nor does it authorize an individual to disclose information otherwise prohibited by or under law.

9149.54.
 (a) The Fair Political Practices Commission shall administer this article. For purposes of this article, the commission does not have any enforcement power.
(b) The commission shall establish the means for the submission of allegations of improper governmental activity to the commission by transmission via mail or other carrier to a specified mailing address and by electronic submission through an Internet Web site portal. The commission may request that a person submitting an allegation voluntarily provide his or her name and contact information and the names and contact information for any persons who could substantiate the claim. However, the commission shall not require a person submitting an allegation to provide his or her name or contact information, and shall clearly state on its Internet Web site that this information is not required in order to submit an allegation.
(c) Upon receipt of an allegation pursuant to subdivision (b), the commission may investigate the matter. The identity of the person submitting the allegation that initiated the investigation, or of any person providing information in confidence to further an investigation, shall not be disclosed without the express permission of that person, except that the commission may make the disclosure to a law enforcement agency that is conducting a criminal investigation pursuant to subdivision (d) or (e).
(d) As an alternative to conducting its own investigation, if the commission determines that there is reasonable cause to believe that a Member or employee of either house of the Legislature may have engaged in an improper governmental activity, the commission may refer the allegation to the Senate Committee on Rules or the Assembly Committee on Rules to conduct an investigation of the allegation. If the commission refers an allegation to the Senate Committee on Rules or the Assembly Committee on Rules, that committee shall investigate the allegation and report the results of the investigation to the commission within 60 days of the referral and monthly thereafter until final action has been taken. In addition, whenever the commission determines that there is reasonable cause to believe that a Member or employee of either house of the Legislature may have engaged in an improper governmental activity, the commission may refer the allegation to the Attorney General or the appropriate district attorney.
(e) If, after investigating an allegation, the commission finds that a Member or employee of either house of the Legislature may have engaged or participated in an improper governmental activity, the commission shall prepare an investigative report and send a copy of that report to the Senate Committee on Rules or the Assembly Committee on Rules and the office of the Member or employee who is the subject of the allegation. The investigative report may include the commission’s recommended actions to prevent the continuation or recurrence of the activity. The commission may, as it deems appropriate, also send a copy of the investigative report to the Attorney General, the appropriate district attorney, the policy committees of the Senate and Assembly having jurisdiction over the subject involved, or to any other entity. The commission may provide to the Senate Committee on Rules or the Assembly Committee on Rules any evidence gathered during the investigation that, in the judgment of the commission, is necessary to support any of the recommendations. Within 60 days of receiving the commission’s investigative report, the Senate Committee on Rules or the Assembly Committee on Rules, as applicable, shall report to the commission any actions that it has taken or that it intends to take to implement the recommendations. The committee shall file subsequent reports on a monthly basis until final action has been taken.
(f) The commission may request the assistance of any Member or employee of either house of the Legislature, or the Senate Committee on Rules or the Assembly Committee on Rules, in evaluating an allegation or conducting any investigation of an improper governmental activity as authorized by this article. In response to a request for assistance from the commission, the Member or employee, or the Senate Committee on Rules or the Assembly Committee on Rules, as applicable, shall provide the assistance, including providing access to documents or other information in a timely manner. No information obtained from the commission by a Member or employee, or the Senate Committee on Rules or the Assembly Committee on Rules, as a result of the commission’s request for assistance, or any information obtained thereafter as a result of further investigation, shall be divulged or made known to any person without the prior approval of the commission.
(g) The commission shall keep confidential every investigation, including all investigative files and work product, except that the commission, whenever it determines that it is necessary to serve the interests of the state, may issue a public report of an investigation that has substantiated an improper governmental activity, keeping confidential the identity of the employee or employees involved. In addition, the commission may release any findings or evidence supporting any findings resulting from an investigation conducted pursuant to this article whenever the commission determines it is necessary to serve the interests of the state.

SEC. 3.

 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.