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AB-2065 Legislative Employee Whistleblower Protection Act: Legislature: employees.(2013-2014)



Current Version: 07/01/14 - Amended Senate

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AB2065:v94#DOCUMENT

Amended  IN  Senate  July 01, 2014
Amended  IN  Senate  June 15, 2014
Amended  IN  Assembly  May 13, 2014
Amended  IN  Assembly  May 05, 2014
Amended  IN  Assembly  April 08, 2014

CALIFORNIA LEGISLATURE— 2013–2014 REGULAR SESSION

Assembly Bill
No. 2065

Introduced by Assembly Members Melendez, Garcia, and Gorell

February 20, 2014

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 2065, as amended, Melendez. Legislative Employee Whistleblower Protection Act: Legislature: employees.
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 act would prohibit retaliation against interference with the right of legislative employees, as defined, who to make protected disclosures of ethics violations. It would also prohibit retaliation against legislative employees who have made protected disclosures. This act would establish a procedure for legislative employees to report acts of retaliation violations of the act to the Legislature. The act 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 expanding the scope of crimes under the act, 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 words 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 alleging a violation of Article 2 of Chapter 1 of this part or of any standard of conduct, as defined by the standing rules of either house of the Legislature.
(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 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.
(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 shall be liable in a civil action for damages brought by a legislative employee.

(b)

(d) Nothing in this section shall be construed to authorize an individual to disclose information otherwise prohibited by or under law.

(c)

(e) This section does not 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.

9149.34.
 A legislative employee may 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.

9149.35.
 Except to the extent that a Member of the Legislature is immune from liability under the doctrine of legislative immunity, a person who violates Section 9149.33 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.

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 violates Section 9149.33 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.
(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 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.
(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 shall also be 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” shall include a former employee of the Legislature.

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.