California Assembly Bill AB1589 Introduced / Bill

 BILL NUMBER: AB 1589INTRODUCED BILL TEXT INTRODUCED BY Committee on Accountability and Administrative Review (De La Torre (Chair), Audra Strickland (Vice Chair), Arambula, Tom Berryhill, Block, Caballero, Emmerson, Fuentes, Hagman, Huber, Jones, Krekorian, Bonnie Lowenthal, and V. Manuel Perez) SEPTEMBER 12, 2009 An act to amend Section 4905 of, to add Section 4639.3 to, and to add Division 4.8 (commencing with Section 4910) to, the Welfare and Institutions Code, relating to developmental services. LEGISLATIVE COUNSEL'S DIGEST AB 1589, as introduced, Committee on Accountability and Administrative Review. Regional centers: whistleblower protection: related-party transactions. Existing law, the Lanterman Developmental Disabilities Services Act, requires the State Department of Developmental Services to allocate funds to private nonprofit regional centers for the provision of community services and support for persons with developmental disabilities and their families, including, but not limited to, residential placement, and sets forth the duties of the regional centers, including, but not limited to, development of individual program plans, the purchase of needed services to implement the plan, and the monitoring of services. The act prohibits an employee or agent of a facility or program from subjecting a person with developmental disabilities to reprisal or harassment that would prevent the person, his or her legally authorized representative, or family member from reporting to the protection and advocacy agency designated by the Governor information pertaining to suspected abuse, neglect, or other violations of the person's rights. This bill would extend that prohibition to any person. Existing law authorizes the department to adopt and enforce conflict-of-interest regulations to ensure that members of the governing board, program policy committees, and employees of regional centers make decisions that are in the best interest of consumers and the families of consumers. This bill would require a regional center to disclose on its Internet Web site specified information regarding related-party transactions, as defined, on a quarterly basis, keep a log of that information for a period of 3 years after termination of the regional center contract, and provide that information to the public upon request. Existing law, the California Whistleblower Protection Act, sets forth the circumstances and procedures under which a state employee, as defined, may report improper governmental activities, as defined, or make a protected disclosure, as defined, to the State Auditor, and prohibits retaliation or reprisal against a state employee for these acts. This bill would enact the Regional Center Whistleblower Protection Act providing similar protections for regional center employees who report improper regional center activities, as defined, or make a protected disclosure, as defined, to the department or the Legislature. The bill would establish a private cause of action to enforce these provisions and would make certain acts of reprisal a crime, thereby imposing 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. State-mandated local program: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 4639.3 is added to the Welfare and Institutions Code, to read: 4639.3. (a) For purposes of this section, the following terms shall have the following meanings: (1) A "related person" means a person who was in any of the following categories at a time during the specified period for which disclosure is required pursuant to subdivision (b): (A) A director or officer of the regional center. (B) A nominee for director. (C) An immediate family member of a director or officer of the regional center or any nominee for director, which means a child, stepchild, parent, stepparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law of the director, officer or director nominee, and a person, other than a tenant or employee, sharing the household of the director, officer, or director nominee. (2) A "transaction" includes, but is not limited to, a financial transaction, arrangement or relationship, including an indebtedness or guarantee of indebtedness, or a series of similar transactions, arrangements, or relationships. (3) A "related-person transaction" means a transaction in which the regional center was or is to be a participant and in which a related person had or will have a direct or indirect material interest. (b) Within 30 days following the last day of each of its fiscal quarters, a regional center shall disclose on its Internet Web site the following information, regarding each related-person transaction that occurred during that quarter: (1) The name of the related person and the basis on which the person is a related person. (2) The related person's interest in the transaction with the regional center, including the related person's position or relationship with, or ownership in, a firm, corporation, or other entity that is a party to, or has an interest in, the transaction. (3) The approximate dollar value of the amount involved in the transaction. (4) The approximate dollar value of the related person's interest in the transaction, which shall be computed without regard to the amount of profit or loss. (5) In the case of indebtedness, disclosure of the amount involved in the transaction shall include the largest aggregate amount of principal outstanding during the period for which disclosure is provided, the amount outstanding as of the latest practicable date, the amount of principal paid during the quarter, the amount of interest paid during the quarter, and the rate or amount of interest payable on the indebtedness. (6) Any other information regarding the transaction or the related person in the context of the transaction that is material to the public in light of the circumstances of the particular transaction. (c) The department shall post a link to each regional center's disclosure information pursuant to subdivision (b) on the department' s Internet Web Site. (d) The information set forth in subdivision (b) shall remain on the regional center's Internet Web site for a 12-month period. The regional center shall keep a log of the quarterly disclosures required pursuant to subdivision (b) for a period of three years after the regional center contract has terminated and shall make the information available upon request to a member of the public. (e) It is the intent of the Legislature that no additional state funds be appropriated for the purposes of this section and that these activities be funded through existing regional center administrative resources. SEC. 2. Section 4905 of the Welfare and Institutions Code is amended to read: 4905. (a) No employee or agent of a facility, program, or service shall subject a person  with a disability  to reprisal or harassment or directly or indirectly take or threaten to take  any   an  action that would prevent the person, his or her legally authorized representative, or family member from reporting or otherwise bringing to the attention of the protection and advocacy agency  or an entity having oversight jurisdiction over a regional   center   any   the  facts or information relative to suspected abuse, neglect, or other violations of  the person's   any consumer's  rights. (b)  Any   An  attempt to involuntarily remove from a facility, program, or service, or to deny privileges or rights without good cause to a  person with a disability   consumer  by whom or for whom a complaint has been made to the protection and advocacy agency  or any entity having oversight jurisdiction over a regional center  , within 60 days after the date the complaint is made or within 60 days after the conclusion of  any   a  proceeding resulting from the complaint, shall raise a presumption that the action was taken in retaliation for the filing of the complaint. SEC. 3. Division 4.8 (commencing with Section 4910) is added to the Welfare and Institutions Code, to read: DIVISION 4.8. Regional Center Whistleblower Protection Act 4910. This division shall be known and may be cited as the "Regional Center Whistleblower Protection Act." 4911. For purposes of this division: (a) "Employee" means an individual employed with, holding office in, or serving as a governing board member of, a regional center as described by Article 1 (commencing with Section 4620) of Chapter 5 of Division 4.5. (b) "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. (c) "Improper regional center activity" means an activity by a regional center or by an employee that is undertaken in the performance of the employee's official duties, whether or not that action is within the scope of his or her employment, and that (1) is in violation of a state or federal law or regulation, including, but not limited to, corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse of government property, or willful omission to perform duty, or (2) is economically wasteful, or involves gross misconduct, incompetency, or inefficiency. The intentional failure of a regional center to comply with any provision of this division shall constitute an improper regional center activity for purposes of this division. (d) "Person" means an individual, corporation, partnership, limited liability company, trust, association, a state or local government, or an agency or instrumentality of any of the foregoing. (e) "Protected disclosure" means a good faith communication that discloses or demonstrates an intention to disclose to the department or the Legislature information that may evidence (1) an improper regional center 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. 4912. (a) An employee may not directly or indirectly use or attempt to use the official authority or influence of the employee for the purpose of intimidating, threatening, coercing, commanding, or attempting to intimidate, threaten, coerce, or command any person for the purpose of interfering with the rights conferred pursuant to this division. (b) For the purpose of subdivision (a), "use the official authority or influence" includes promising to confer, or conferring, a benefit; effecting, or threatening to effect, a reprisal; or taking, or directing others to take, or recommending, processing, or approving, a personnel action, including, but not limited to, appointment, promotion, transfer, assignment, performance evaluation, suspension, or other disciplinary action. (c) An employee who violates subdivision (a) may be liable in an action for civil damages brought against the employee by the offended party. (d) Nothing in this section shall be construed to authorize an individual to disclose information otherwise prohibited by or under law. 4913. (a) Except as expressly set forth in this division, the department shall administer this division, shall investigate, and shall report as set forth in this section, regarding improper regional center activities. (b) Upon receiving specific information that improper regional center activity has occurred, the department shall investigate and may, if necessary, conduct a full investigative audit of the matter. The identity of the person providing the information that initiated the investigation shall not be disclosed without the written permission of the person providing the information unless the disclosure is to a law enforcement agency that is conducting a criminal investigation. (c) If the department determines that there is reasonable cause to believe that improper regional center activity has occurred, the department shall report the nature and details of the activity to the regional center director. (d) If, after investigating, the department finds that improper regional center activities have occurred, the department shall send a copy of the investigative report to the regional center. Within 30 days after receiving a copy of the department's investigative report, the regional center shall either serve a notice of adverse action upon the employee who is the subject of the investigative report or set forth in writing its reasons for not taking adverse action. The regional center shall submit a copy of the notice of adverse action to the department. If the regional center does not take adverse action, it shall submit its written reasons for not doing so to the department. (e) If appropriate, the department shall report this information to the Attorney General, the policy committees of the Senate and Assembly having jurisdiction over the subject involved, and to another authority that the department determines appropriate. 4915. The department may request the assistance of a state department, agency, or employee in conducting an investigative audit required by this division. No information obtained from the department, agency, or employee as a result of the department's request for assistance, nor any information obtained thereafter as a result of further investigation, shall be divulged or made known to a person without the prior approval of the department. 4916. (a) In a case in which the department submits a report of alleged improper regional center activity to the regional center director, the regional center director shall report to the department with respect to the action taken by the individual regarding the activity, the first report being transmitted within 30 days after the date of the department's report and monthly thereafter until final action has been taken. (b) Every investigation shall be kept confidential, except that the department shall issue a report of an investigation that has been substantiated, keeping confidential the identity of the individual or individuals involved, and shall release the findings resulting from an investigation conducted pursuant to this division that is deemed necessary to serve the interests of the state. Information provided to the department, or by the department, pursuant to this division is exempt from the prohibitions of Sections 4514 and 5328. (c) Notwithstanding law, including, but not limited, to Section 4915, this division shall not limit the authority conferred upon the Attorney General or a department or agency of government to investigate any matter. 4917. (a) An employee or applicant for regional center employment who files a written complaint with his or her supervisor, manager, or the regional center alleging actual or attempted acts of reprisal, retaliation, threats, coercion, or similar improper acts prohibited by this division, may also file a copy of the written complaint with the department, together with a sworn statement that the contents of the written complaint are true, or are believed by the affiant to be true, under penalty of perjury. The complaint filed with the department, shall be filed within 12 months of the most recent act of reprisal complained about. (b) A person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against an employee or applicant for regional center employment for having made a protected disclosure, is subject to a fine not to exceed ten thousand dollars ($10,000) and imprisonment in the county jail for a period not to exceed one year. (c) In addition to all other penalties provided by law, a person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against an employee or applicant for regional center employment for having made a protected disclosure shall be liable in an action for damages brought against him or her by the injured party. Punitive damages may be awarded by the court where the acts of the offending party are proven to be malicious. Where liability has been established, the injured party shall also be entitled to reasonable attorney's fees as provided by law. However, an action for damages shall not be available to the injured party unless the injured party has first filed a complaint with the department pursuant to subdivision (a), and the department has issued, or failed to issue, findings. (d) This section is not intended to prevent a regional center, manager, or supervisor from taking, directing others to take, recommending, or approving a personnel action or from taking or failing to take a personnel action with respect to an employee or applicant for regional center employment if the regional center, manager, or supervisor reasonably believes the 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) In a civil action or administrative proceeding, once it has been demonstrated by a preponderance of evidence that an activity protected by this division was a contributing factor in the alleged retaliation against a former, current, or prospective employee, the burden of proof shall be on the supervisor, manager, or regional center to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in protected disclosures or refused an illegal order. If the supervisor, manager, or regional center fails to meet this burden of proof in an adverse action against the employee in an administrative review, challenge, or adjudication in which retaliation has been demonstrated to be a contributing factor, the employee shall have a complete affirmative defense in the adverse action. (f) Nothing in this division shall be deemed to diminish the rights, privileges, or remedies of an employee under any other federal or state law or under any employment contract or collective bargaining agreement. 4918. By April 1, 2010, the department shall prepare for employees a written explanation of the provisions of this division and Division 4.7 (commencing with Section 4900). The explanation shall include, but need not be limited to, all of the following information: (a) Instructions on how to contact the department by mail, telephone, e-mail, and fax. (b) A general overview of improper regional center activities and examples of three of the most common types of improper regional center activities that may be reported to the department. (c) An explanation of whistleblower protection available to employees who report improper regional center activities to the department. (d) The requirement that the department protect the anonymity of a person who reports improper regional center activity to the department. (e) The department's authority in connection with violations of law discovered during an investigation of improper regional center activities. (f) A description of the penalties imposed under Section 4917. 4919. (a) The department shall prepare for distribution to each regional center in an electronic format a notice containing the information in the written explanation prepared pursuant to Section 4918. By July 1, 2010, each regional center shall print and post this notice at its office or offices in a location or locations where employee notices are maintained. A regional center shall not edit the written text of the notice but it may publish the notice in a manner it chooses, and it may include its own introductory language in the notice, provided that the language and the format selected do not alter the meaning of the notice. (b) On July 1, 2010, and annually thereafter, every regional center shall send the information contained in the notice by electronic mail to its employees who have authorized access to electronic mail from the regional center. (c) The department shall post the information described in Section 4918 on its Internet Web site. SEC. 4. 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.