Assembly Muzzles Whistleblower Bill

JAN. 20, 2012

By KATY GRIMES

So much for open government.

AB 1378 would have provided legislative staffers the same safeguards that nearly all other state employees receive after blowing the whistle on government wrongdoing. But on Thursday, it was muzzled by the Assembly Appropriations Committee, a move that looked retaliatory.

Previously, AB 1378 passed out of the Assembly Judiciary Committee last week unanimously. So why was it then later killed in the Appropriations Committee. The bill’s author was Assemblyman Anthony Portantino,  D-La Canada. He explained that, when state employees do the right thing and expose waste, fraud and abuse, they are protected from retaliation under the California Whistleblower Protection Act.

However, there are no protections for California’s Capitol staff should they decide to blow the whistle on fraud. That’s because California whistleblower law specifically exempts employees of the Legislature.

Portantino was on a plane and unavailable after the hearing, but his office released his statement to the media. “I am disappointed that the Assembly Appropriations Committee chose to kill Whistleblower Protection in the State Capitol,” said Portantino.“Every other state agency has protections in place for folks who bring forward allegations of waste fraud and abuse. Today’s action continues a self-serving exemption that undermines the public’s confidence and trust. Late opposition to AB 1378 was unfortunate since the measure had previously been supported unanimously in policy committee. I will continue to bring forward proposals to seek openness and transparency in California government.”

Howle Opposition

Late opposition to the bill came from California State Auditor Elaine Howle. Last week during the lengthy Judiciary Committee hearing, no opposition came from the auditor’s office, and Portantino’s bill sailed through the Judiciary Committee after very spirited debate.

Howle is involved because, under the existing Whistleblower Protection Act, the auditor’s office accepts complaints from state employees who wish to report any action within government that “violates the law, is wasteful, or involves gross misconduct, incompetency, or inefficiency.” But in a last minute stratagem, it appeared that Howle decided to oppose AB 1378.

Portantino reported that he was only notified about the auditor’s opposition Wednesday evening, the night before the committee hearing. “AB 1378 called for legislative employees to be given legal protection from reprisals for reporting government wrongdoing such as waste or abuse,” the Portantino statement explained. “Specifically, AB 1378 would have required the Rules Committees of both the Assembly and Senate to designate an officer to receive written complaints and the State Auditor would then investigate those complaints. Those found guilty of retaliation faced fines up to $10,000 and a year in county jail.”

Howle told the committee Thursday that her agency could not absorb the estimated $400,000 it would cost to investigate the more than 2,000 anticipated legislative whistleblower complaints if the legislative staff exemption was lifted.

But in August 2010, the Legislature passed AB 1749, giving 22,000 state trial court employees protection from retaliation for blowing the whistle on wrongdoing in the state’s court system. The auditor did not object at that time, nor was any additional cost ascribedto the 22,000 potential whistleblower complaints for judicial employees.

Whistleblower Experience

Portantino knows what retaliation looks and feels like after blowing a whistle on colleagues. In August 2011, Portantino confronted the Assembly for not complying with the state-required performance audit of the Assembly.

Portantino then introduced legislation to force the Assembly and Senate to comply with the California Public Records Act, which makes access to records much easier. But that bill was killed. In a retaliatory move, the Assembly Rules Committee one-upped Portantino when it released member-by-member spending records, incorrectly listing Portantino as the top Assembly spender.

However, he subsequently proved that the records were not accurate and that his office was actually 37th in spending, of all of the 80 Assembly members. And it finally took an order from Superior Court Judge Timothy Frawley before the Assembly released its own real spending records.

Portantino’s office said that the Assemblyman will be introducing another whistleblower bill, with a new, independent agency as the recipient for complaints.