SENIOR SENATE PROPOSAL NO. 5

INTRODUCED BY SENIOR SENATOR FINGOLD

LEGISLATIVE COUNSEL'S DIGEST

SP 5: ELDER AND DEPENDENT ADULT ABUSE AND NEGLECT: GAG CLAUSES

UNDER EXISTING LAW, THE ELDER ABUSE AND DEPENDENT CIVIL PROTECTION ACT PROSCRIBES CRIMES AGAINST ELDER AND DEPENDENT ADULTS INVOLVING PHYSICAL AND FINANCIAL ABUSE. THE ACT PERMITS VICTIMS OF ELDER AND DEPENDENT ABUSE TO BRING A CIVIL ACTION AND PROVIDES FOR THE AWARD OF ATTORNEY’S FEES AND COSTS, AND DAMAGES TO A PLAINTIFF WHEN IT IS PROVEN THAT A DEFENDANT IS LIABLE FOR PHYSICAL ABUSE, NEGLECT, OR FINANCIAL ABUSE.

THIS MEASURE WOULD MEMORIALIZE THE LEGISLATURE AND THE GOVERNOR TO ENACT LEGISLATION THAT WOULD PROVIDE THAT ANY PROVISION IN A SETTLEMENT AGREEMENT FOR A CIVIL ACTION FOR PHYSICAL ABUSE, NEGLECT, OR FINANCIAL ABUSE OF AN ELDER OR DEPENDENT ADULT SHALL NOT INCLUDE A GAG CLAUSE OR ANY PROVISION THAT PROHIBITS CONTACT OR COOPERATION WITH LAW ENFORCEMENT AGENCIES, STATE AGENCIES, OTHER GOVERNMENTAL ENTITIES, A PROTECTION OR ADVOCACY AGENCY, OR THE DEFENDANT’S CURRENT EMPLOYER IF THE DEFENDANT’S JOB RESPONSIBILITIES INCLUDE CONTACT WITH ELDERS OR DEPENDENT ADULTS, AND THAT IF THE SETTLEMENT AGREEMENT DOES INCLUDE SUCH A GAG CLAUSE OR NO CONTACT PROVISION, THE CLAUSE OR PROVISION IS VOID AS AGAINST PUBLIC POLICY.

VOTE: MAJORITY.

SP 5: RELATING TO ELDER AND DEPENDENT ADULT ABUSE AND NEGLECT

WHEREAS, PROVISIONS IN SETTLEMENT AGREEMENTS THAT PREVENT VICTIMS FROM CONTACTING, PROVIDING INFORMATION TO, OR OTHERWISE COOPERATING WITH, INVESTIGATORY AGENCIES IMPEDE THE AGENCYS’ WORK OF IDENTIFYING AND MONITORING ABUSE, AS WELL AS THEIR PROSECUTORIAL FUNCTIONS; AND

WHEREAS, IF ONE ELDERLY PERSON HAS BEEN ABUSED OR NEGLECTED IN A NURSING FACILITY, THERE IS A SIGNIFICANT CHANCE THAT OTHERS HAVE BEEN SIMILARLY ABUSED OR NEGLECTED; AND

WHEREAS, GAG CLAUSES IN SETTLEMENT AGREEMENTS PREVENT LAW ENFORCEMENT AND OTHER AGENCIES FROM COMBATING SYSTEMIC PROBLEMS OF ELDER AND DEPENDENT ADULT ABUSE; NOW, THEREFORE, BE IT

RESOLVED, BY THE SENIOR SENATE AND THE SENIOR ASSEMBLY, JOINTLY, THAT THE SENIOR LEGISLATURE OF THE STATE OF CALIFORNIA AT ITS 2012 REGULAR SESSION, A MAJORITY OF THE MEMBERS VOTING THEREFOR, HEREBY PROPOSES THAT EXISTING LAW BE AMENDED TO PROVIDE THAT ANY SETTLEMENT AGREEMENT FOR A CIVIL ACTION FOR PHYSICAL ABUSE, NEGLECT, OR FINANCIAL ABUSE OF AN ELDER OR DEPENDENT ADULT SHALL NOT INCLUDE A GAG CLAUSE OR ANY PROVISION THAT PROHIBITS CONTACT OR COOPERATION WITH LAW ENFORCEMENT AGENCIES, STATE AGENCIES, OTHER GOVERNMENTAL ENTITIES, A PROTECTION OR ADVOCACY AGENCY, OR THE DEFENDANT’S CURRENT EMPLOYER IF THE DEFENDANT’S JOB RESPONSIBILITIES INCLUDE CONTACT WITH ELDERS OR DEPENDENT ADULTS; AND BE IT FURTHER

RESOLVED, THAT IF THE SETTLEMENT AGREEMENT DOES INCLUDE SUCH A GAG CLAUSE OR A NO CONTACT PROVISION, THE CLAUSE OR PROVISION IS VOID AS AGAINST PUBLIC POLICY; AND BE IT FURTHER

RESOLVED, THAT THE SENIOR LEGISLATURE OF THE STATE OF CALIFORNIA RESPECTFULLY MEMORIALIZES THE LEGISLATURE AND THE GOVERNOR OF THE STATE OF CALIFORNIA TO ENACT APPROPRIATE LEGISLATION THAT WOULD ADDRESS THE CONCERNS SET FORTH IN THIS MEASURE; AND BE IT FURTHER

RESOLVED, THAT A COPY OF THIS MEASURE BE TRANSMITTED TO THE SPEAKER OF THE ASSEMBLY, THE PRESIDENT PRO TEMPORE OF THE SENATE, AND THE GOVERNOR OF THE STATE OF CALIFORNIA.

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RN 12 16475