Analysis

A look at the new whistleblower protections

Assemblymember Melissa Melendez at a Capitol Park rally supporting her whistleblower protection bill. (Photo: Rich Pedroncelli/AP)

Gov. Jerry Brown has signed into law whistleblower protections for Capitol staffers. Now, legislative employees  will have the same protections as all other state employees.

But a question arises: Will the new law, which passed both Democrat-controlled houses without a dissenting vote, really make much of a difference?

On that issue, the jury is out — for now.

Protections against harassment by lobbyists were removed before the legislation was approved.

The bill, AB 403, by Assemblymember Melissa Melendez, a Lake Elsinore Republican, makes it illegal to retaliate against a legislative employee who blows the whistle on a fellow employee, or lawmaker, with “good faith allegation” for any action that may violate legislative code of conduct or state law. Currently, the Senate operates on a code of conduct while the Assembly does not.

It does not apply only to sexual misconduct. The original version of the bill — it had failed four years in a row — began during the criminal scandals that engulfed several lawmakers, all Democrats.

But the latest, heavily amended version of the bill gained traction following public complaints of sexual misconduct detailed in an open letter signed by more than 140 women against lawmakers, lobbyists and others.

Protections against harassment by lobbyists, a common complaint in the October 2017 open letter, were removed from the Melendez legislation before the bill was approved.

A separate bill to do just that, SB 419 by Sen. Anthony Portantino, was approved by the Senate but is stalled in the Assembly.

Legislative employees, like other employees, already are protected under the Fair Employment and Housing Act.

Also removed from the Melendez bill on the Senate side was “much of the original language of this bill that codified the right of legislative employees to file a complaint about legislative misconduct with various committees and entities within the Legislature, prohibited the interference with legislative employees making such complaints, and prohibited retaliation against legislative employees for doing so,” according to a legislative analysis of the bill.

Legislative employees, like other employees of entities public or private, already are protected under the Fair Employment and Housing Act.

But a critical departure from current law is that the Melendez bill sets up penalties for violating a legislative employee’s right to a new category of conduct called “protected disclosure.”

Under the Melendez bill, anyone who intentionally retaliates against a legislative employee’s right to protected disclosure will have to pay up to $10,000 and spend up to a year in jail, as well as face civil liability.

Interns, volunteers, fellows, and those applying for a job in the Legislature also are covered.

“Sadly, it’s taken four years for this bill, or any whistleblower language, to make it to this floor.” — Joel Anderson

Melendez and Senate GOP Leader Patricia Bates, R-Laguna Niguel, co-authored AB 403 along with the other members of the Senate Republican Caucus. Each have their own reasons for unanimously standing behind Melendez.

Senator Joel Anderson, R-San Diego, spoke to members of the Senate Feb. 1 before the unanimous vote, expressing his concern for the bill taking so long to become law.

“Sadly, it’s taken four years for this bill, or any whistleblower language, to make it to this floor,” he said. “I don’t know what the hold-up is… I don’t know why leadership wouldn’t want it to come to the floor,” Anderson added.

Bates said she hopes no one will feel afraid to speak up about harassment of any kind, especially sexual.

“No one should ever have to sacrifice their livelihoods for courageously reporting sexual harassment and other wrongdoings,” Bates said.

“I was in the military for a number of years … you wanna talk about major sexual harassment issues.” — Melissa Melendez.

As for Melendez, she fought for the bill because she knows what it is like to face issues in the workplace.

“I’ve been there, I know what it feels like,” Melendez said in an interview with Capitol Weekly. “It is embarrassing and humiliating to tell your story.”

“You have no idea how you are going to be received,” Melendez said. “Will someone act on it or brush it off? It is a horrible situation to be in,” she added.

“I was in the military for a number of years … you wanna talk about major sexual harassment issues,” Melendez said.

The Pentagon announced early 2017 a record total of 6,172 sexual assault cases were reported in 2016, compared with 6,082 the previous year. This was a steep increase from 2012 when 3,604 cases were reported.

Melendez joined the U.S Navy after graduating high school in her hometown of Youngstown, Ohio. After basic training she eventually entered the reconnaissance and intelligence service for the Navy, becoming the first woman to fly aboard the EP-3 reconnaissance aircrafts overseas.

“Why would we dare not give them their voice?” Melendez said during a Senate floor speech.

As members of Hollywood stepped forward with the “Me Too” movement after talk of Harvey Weinstein’s behaviors leaked out, more than 160 female lawmakers, staffers, and lobbyists spoke out on harassment in California’s Capitol last year.

“These degrading acts over time cause us to shrink back in our personal and professional lives. While advocating for the causes and clients in which we believe, and working to advance our careers, we must concurrently balance these activities with worry, fear, or shame,” the letter read.

Melendez said she does not have an answer as to why the legislative branch has not been protected until now, but has a few guesses.

“Why would we dare not give them their voice?” Melendez said during a Senate floor speech.

“I can speculate…the Legislature didn’t want their staff to blow their whistle. It is a great control weapon. Why else would you not include them?” Melendez said during an interview with Capitol Weekly.

“Today is the day we banish secrecy and fear from the Capitol dome,” Senator Ted Gaines, R- El Dorado, during his floor speech last week.

 


  • Charles Phillips

    Who is protecting those of us who come to the capitol to express our free speech opinions to your Kaiser-fornia Boards – medical, pharmacy, and nursing – within the Open Microphone time? I came to tell your Medical Board on 9/19/2015 (See YouTube) that it was riddled with conflict of interest. And the Permanente physicians from Oakland launched a campaign against my license just months later that resulted its removal by mid-2015 – one of them voting on Discipline Committee B.

    So that I lost $3 million in income for having come to the city of the Dome to warn now 40,000,000 people about a medical disaster. The whistles are dead in Sacramento when the very Consumer Boards are allowed to shut people up with the “Three Minute Rule” and punish them for life for speaking. Your job is NOT complete until those telling you about corruption cannot be so targeted. In this case the feds may take over your sick Medical Board, Pharmacy Board, and perhaps let your Nursing Board simply be monitored for fairness.

    The real focus will turn in a federal probe to Jerry Brown for appointing people to the Medical Board whose conflict of interest is so obvious – Sharon Levine, MD (#2 at Kaiser docs), Dr. Dev (in the pocket of a billionaire financing his medical school), and so forth. Jerry Brown himself becomes the Enabler-in-Chief as this all moves into federal court in the biggest scandal in history – Kaiser-gate.

    Charles Phillips, MD – called “psychotic” for standing up for patient – now that is a governor whose just lost any claim to be a Zen Buddhist or a Jesuit vowing zealot. The King of California is a sham and a shame – not understanding the Brown Act passed in about 1950 by a better Brown – the forward written by a reporter. Good grief we need federal take over before more are killed.

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