A state Assembly member wants legislative staffers protected by the same laws that shield whistleblowers in the executive branch, and his recent amendments of his bill to that effect are being praised, because they confine the protection to non-elected Capitol staff—not lawmakers like him. Richard Renner reports for the National Whistleblowers Legal Defense & Education Fund, but doesn’t seem to grasp that the amendments cut both ways.
California Assemblyman Anthony Portantino (D-La Cañada Flintridge) has won committee approval for his bill to give employees in the Legislature the same protections afforded to other state workers when they report waste, fraud and abuse. Assembly Bill 1378 will give legislators and their employees protection from retaliation for reporting “improper governmental activity.” The bill provides criminal and civil liability for violations. In a recent amendment, the bill limits the right to pursue civil remedies to employees, not legislators themselves. The Sacramento Bee reports that Assemblyman Portantino suffered retaliation himself after he was the lone Democrat to vote against a budget bill. The Speaker slashed the budget for his office staff. Thus, when Assemblyman Portantino agreed to the amendment to limit civil claims to employees only, he was giving up his own rights for the sake of his employees. The outcome: a committee vote on January 10 with 10 votes in favor and no opposition. Congratulations!
The January 13 amendments do indeed say that members of the Assembly and Senate are not to be protected as whistleblowers, i.e. given the right to sue for damages if they suffer retaliation by the Legislature for blowing the whistle. No wonder, since they are also not permitted to blow the whistle in the first place, i.e. “to submit an allegation [of improper governmental activity—'any action that violates the law, is economically wasteful, or involves gross misconduct, incompetency, or inefficiency'] to initiate an investigation [by the State Auditor] against the Legislature or a Member or an employee of the Legislature.” They’re also to be immune from liability for damages for retaliating against whistleblowers, if they do so by way of legislative action, for example acting as a rules committee to order dismissal of a whistleblower from the legislative staff, voting to adopt legislative findings that libel a whistleblowing employee, or perhaps using subtler mechanisms to punish whistleblowers.
A thoughtful analysis by Judiciary Committee Consultant Kevin Baker shows, however, that application of conventional whistleblower protection terms and concepts to the legally privileged yet politically conflict-prone arena under the Capitol dome is riddled with complexities.