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AB-1788 Legislature: Legislative Employee Whistleblower Protection Act.(2015-2016)

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AB1788:v98#DOCUMENT

Amended  IN  Assembly  April 20, 2016

CALIFORNIA LEGISLATURE— 2015–2016 REGULAR SESSION

Assembly Bill
No. 1788

Introduced by Assembly Member Melendez

February 04, 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   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.