THIRD READING  

Bill No: AB 1007

Author: Jones-Sawyer (D)

Amended: 6/25/19 in Senate

Vote: 21

SENATE LABOR, PUB. EMP. & RET. COMMITTEE: 4-1, 6/19/19

AYES: Hill, Jackson, Mitchell, Pan

NOES: Morrell

SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/30/19

AYES: Portantino, Bradford, Durazo, Hill, Wieckowski

NOES: Bates, Jones

ASSEMBLY FLOOR: 54-18, 5/28/19 - See last page for vote

SUBJECT: State Civil Service Act: adverse action: notice

SOURCE: California Correctional Supervisors Organization, Inc.

DIGEST:

This bill amends the state civil service adverse action process by requiring a state employer to provide notice of an adverse action to a state employee within one year of the discovery of the employee’s alleged misconduct for the adverse action to be valid, except as specified.

ANALYSIS:

Existing law:

1. Defines “adverse action” for purposes of state employment as dismissal, demotion, suspension or other disciplinary action (Government Code §19570).
2. Authorizes an appointing power (i.e., the state employer) to take adverse action against a state employee for specified causes of discipline and establishes administrative procedures for review of an adverse action by the State Personnel Board (GC §19571 et seq.).
3. Requires the state employer to serve notice of an adverse action, as specified, against a state employee for any cause for discipline within three years of the cause for discipline, i.e. from its occurrence not the discovery of the occurrence (GC §§19574 and 19635).
4. Specifies that in cases of fraud, embezzlement, or falsification of records, the state employer has three years after the discovery of the activity to serve notice to the state employee (GC §19635).
5. Provides additional protections from adverse action to state firefighters and peace officers and by prohibiting the state employer from taking any punitive action against the employee from any investigation of any misconduct if the employer does not complete the investigation within one year of discovery of the misconduct (GC §§3254 and 3304).

This bill:

1. Prohibits any adverse action against a state employee for a civil service cause for discipline discovered on or after January 1, 2020, unless the employer serves notice of the adverse action within one year after the first occurrence of the cause for discipline (i.e., regardless of when the misconduct was discovered) except for specified misconduct (see below).
2. Maintains the existing distinct requirement that a state employer provide notice of the adverse action to the employee within three years of discovery of the misconduct for cases of fraud, embezzlement, or falsification of records.
3. Adds the following misconduct to cases for which the state employer must provide the employee notice of adverse action within three years of discovery of the misconduct:
   1. Sexual assault; and
   2. A cause for discipline that is the subject of a criminal investigation or criminal prosecution for a felony.

Related/Prior Legislation

SB 646 (Galgiani, 2017) would have prohibited an adverse action based on a cause for discipline discovered on or after January 1, 2018, from being valid against any state employee for any cause for discipline based on any civil service law of California, unless the employer served notice of the adverse action within one year after the cause for discipline, excluding actions of fraud, embezzlement or falsification of records. This bill died on the Assembly Inactive File.

AB 769 (Jones Sawyer, 2015) would have required that any adverse action taken against a state employee for any cause for discipline, other than for fraud, embezzlement, or the falsification of records, or the unauthorized accessing or disclosure of confidential tax information be served, and the investigation completed, within one year after the cause of discipline arose. Governor Brown vetoed the bill and stated that:

I am unwilling to reduce longstanding civil service adverse action timeframes because it may take state agencies longer than a year to investigate and serve adverse actions in complex cases involving employee misconduct or unsatisfactory work performance. Further, this bill hinders the progressive discipline process which is intended to give employees a reasonable amount of time to correct problems at an early stage. As such, this bill makes it more difficult for the state to manage and ensure the integrity of its workforce.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee, the bill could result in unknown, potentially significant costs, to state departments related to accelerating the adverse action process (General and special funds).

SUPPORT: (Verified 6/12/20)

California Correctional Supervisors Organization, Inc. (source)

Association of California State Supervisors

California Association of Psychiatric Technicians

Professional Engineers in California Government

OPPOSITION: (Verified 6/12/20)

None received

ARGUMENTS IN SUPPORT: According to the California Correctional Supervisors Organization, Inc., “Under current law, there is an unreasonable large window of time – three years – for state agencies to take action against an employee after the alleged wrongdoing has been initially discovered. This long time-frame raises serious due process issues and makes it difficult for an employee to defend their actions, since witnesses who might support their position may be no longer available after such an extended period of time has elapsed.”

ASSEMBLY FLOOR: 54-18, 5/28/19

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bloom, Boerner Horvath, Bonta, Burke, Calderon, Carrillo, Cervantes, Chau, Chiu, Chu, Cooper, Friedman, Gabriel, Cristina Garcia, Gipson, Gloria, Gonzalez, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Levine, Limón, Low, Maienschein, McCarty, Medina, Mullin, Muratsuchi, Nazarian, O'Donnell, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Weber, Wicks, Wood, Rendon

NOES: Bigelow, Brough, Chen, Choi, Cunningham, Dahle, Diep, Flora, Fong, Gallagher, Kiley, Lackey, Mathis, Mayes, Melendez, Obernolte, Patterson, Voepel

NO VOTE RECORDED: Cooley, Daly, Eggman, Frazier, Eduardo Garcia, Gray, Ting, Waldron

Prepared by: Glenn Miles / L., P.E. & R. / (916) 651-1556

6/12/20 13:27:43

**** END ****

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

AB 1007 (Jones-Sawyer) - State Civil Service Act: adverse action: notice

Bill Summary:

AB 1007 would make specified changes to the adverse action process within state civil service.

Fiscal Impact:

The bill could result in unknown, potentially significant costs, to state departments related to accelerating the adverse action process (General and special funds).

Background:

“Adverse action” generally refers to an action taken by an appointing power to discipline an employee and includes formal reprimand, transfers for disciplinary reasons, suspension, reduction-in-salary, demotion and dismissal. More specifically, adverse action is the final phase in the progressive discipline process within civil service employment with the State. Current law (1) authorizes an appointing power to take adverse action against a state employee for specified causes, and (2) establishes administrative procedures for review of an adverse action. Notice of any adverse action against a state employee for any cause for discipline based on any civil service law must be served within three years of the occurrence of the cause for discipline; there is no time limit under current law with respect its completion. Additionally, current law specifies that in cases of fraud, embezzlement, or falsification of records, notice must be served within three years after the discovery of the activity.

Proposed Law:

This bill would prohibit adverse action based on fraud, embezzlement, falsification of records, harassment on specified bases, sexual assault, or a cause for discipline that is the subject of a criminal investigation or criminal prosecution for a felony, from being valid unless notice is served within 3 years after the discovery of the cause for discipline. If the cause for discipline is for any other reasons, the bill would prohibit adverse action from being valid unless (1) notice is served within one year after the discovery of the cause for discipline, and (2) it was discovered on or after January 1, 2020.

Related Legislation:

• SB 646 (Galgiani, 2017) would have prohibited an adverse action based on a cause for discipline discovered on or after January 1, 2018, from being valid against any state employee for any cause for discipline based on any civil service law of California, unless the employer served notice of the adverse action within one year after the cause for discipline, excluding actions of fraud, embezzlement or falsification of records. This bill died on the Assembly Inactive File.
• AB 769 (Jones Sawyer, 2015) would have required that any adverse action taken against a state employee for any cause for discipline, other than for fraud, embezzlement, or the falsification of records, or the unauthorized accessing or disclosure of confidential tax information be served, and the investigation completed, within one year after the cause of discipline arose. The bill was vetoed by the Governor.

Staff Comments:

As noted above, this bill would shorten the timeframe associated with initiating an adverse action. Consequently, it would likely result in increased costs to state departments, including a combination of hiring additional staff and increased overtime for current staff to process disciplinary actions. The precise fiscal impact would depend upon the number of (1) future adverse actions, and (2) impacted departments.

Absent new funding, state departments responding to the shortened timeframe to initiate adverse actions could be required to choose between (1) reducing staff and resources dedicated to investigations and completing existing adverse actions, or (2) not pursuing new, legitimate disciplinary actions.

-- END --

SENATE COMMITTEE ON LABOR, PUBLIC EMPLOYMENT AND RETIREMENT

Senator Jerry Hill, Chair

2019 - 2020 Regular

Bill No: AB 1007 Hearing Date: June 19, 2019

SUBJECT: State Civil Service Act: adverse action: notice

KEY ISSUE

Should a state employer provide notice of an adverse action to a state employee within 1 year instead of 3 years of the occurrence of the employee’s alleged misconduct?

ANALYSIS

Existing law:

1. Defines “adverse action” for purposes of state employment as dismissal, demotion, suspension or other disciplinary action (Government Code §19570).
2. Authorizes an appointing power (i.e., the state employer) to take adverse action against a state employee for specified causes of discipline and establishes administrative procedures for review of an adverse action by the State Personnel Board (GC §19571 et seq.).
3. Requires the state employer to serve notice of an adverse action, as specified, against a state employee for any cause for discipline within 3 years of the cause for discipline, i.e. from its occurrence not the discovery of the occurrence (GC §§19574 and 19635).
4. Specifies that in cases of fraud, embezzlement, or falsification of records, the state employer has 3 years after the discovery of the activity to serve notice to the state employee (GC §19635).
5. Provides additional protections from adverse action to state firefighters and peace officers and by prohibiting the state employer from taking any punitive action against the employee from any investigation of any misconduct if the employer does not complete the investigation within 1 year of discovery of the misconduct (GC §§3254 and 3304).

This bill:

Prohibits any adverse action against a state employee for a civil service cause for discipline discovered on or after January 1, 2020, unless the employer serves notice of the adverse action within 1 year after the cause for discipline first arose (i.e., occurred).

Exempts from the application of the 1 year limitation, the following:

Cases of fraud, embezzlement, or falsification of records. The state employer would continue to have three years after the discovery of the activity to serve the employee notice of adverse action.

Cases of harassment, as specified; sexual assault; or a cause for discipline that is the subject of a criminal investigation or criminal prosecution for a felony. The state employer would continue to have a period within three years of the cause of the activity (i.e., its occurrence) to serve the employee notice of adverse action.

COMMENTS

1. Need for this bill?

Background

California’s state civil service has a robust system of disciplinary procedures and protections designed to provide due process to state employees and allow state employers to manage the state workforce appropriately. The disciplinary system incorporates bargaining agreements, statutory requirements, departmental rules, and an administrative appellate system managed by the State Personnel Board.

State employers that wish to bring an adverse action against an employee must follow specified procedures, including providing notice to the employee that the employer is pursuing an adverse action based on one or more specified causes of discipline. Regardless of its merits, no adverse action will be valid against the employee (i.e., it will have no effect) if the employer does not provide the required notice.

State law requires the state employer to provide an adverse action notice in most cases within 3 years of the occurrence of the employee’s misconduct. For certain “causes of discipline”, the state employer has 3 years after the discovery of the employee’s misconduct.

Firefighters and peace officers have additional protections in that their employers have 1 year to complete an investigation and present findings from the date of discovery of the employee’s misconduct.

Rationale for the Notice Limitation

While state employers should have adequate time to investigate allegations of employee misconduct, due process requires that employees should get reasonable notice that they face adverse actions. Otherwise, state employees face difficulties gathering evidence and witnesses for their defense as witness move and memories of incidents fade. Additionally, state employers can improperly use investigative delays to create inimical conditions to pressure the employee to abandon the employee’s due process rights.

Stated Reason for a Change in the Limitation from 3 Years to 1 Year.

According to the sponsor,

In most cases a state employee suspected of wrong doing will be moved from their position to another area and will not be allowed to transfer or promote until the investigation is complete. Quite often, because the state agency believes it has three years to complete an investigation, they will take the entire three years to complete the investigation from the date of discovery. This completely stops the employee’s career and puts that employee under duress for three years. Not only is this unfair to the employee who may be found innocent of any wrongdoing, but it does not reflect the legislative intent of this particular provision of current law.

On the Difference between Occurrence and Discovery of the Misconduct

Aside from the exceptions discussed below, current law requires most state employees to receive notice of an adverse action within 3 years of the occurrence of alleged misconduct not from the discovery of the misconduct. If a state employer does not discover the misconduct until 3 years after its occurrence, the employer’s adverse action will not take effect against the employee.

The bill’s author and supporters make equity arguments both in relation to the current 3-year notice limitation being too long in general and to the inconsistent treatment of most state employees compared to peace officers and firefighters. For example, the sponsor states the following:

California peace officers have a one-year time limit to complete an investigation and present findings from the date of discovery of any wrongdoing they are suspected. Peace officer state employee cases are completed within one year from the date of discovery.

Changing California law to require the investigation for other state employees to be completed within one year of the date of discovery is reasonable and it will preserve due process rights for the employee.

Staff merely notes that the bill as currently drafted does not change law to 1 year from discovery of the misconduct but rather to 1 year from the occurrence of the misconduct. This appears to conflict with the stated intent of establishing parity with state peace officers and firefighters by making the notice limitation 1 year from the date of discovery of the misconduct.

re Tolling for Harassment, Sexual Assault, and Criminal Misconduct

The bill exempts certain categories of misconduct from its proposed 1-year notice limitation. These include certain categories that under current law toll from the discovery rather than the occurrence of the misdeed (fraud, embezzlement, or falsification of records). As currently drafted, these categories would continue to toll 3 years from the discovery of the misconduct.

The bill also exempts new categories of misconduct from the proposed 1-year limitation. These include harassment, as specified; sexual assault; or a cause for discipline that is the subject of a criminal investigation or criminal prosecution for a felony. However, unlike the original categories referenced above, these new categories are not exempt from the existing 3-year limitation from the occurrence provision. Thus, these new categories would require the state employer to provide the employee notice within 3 years of the occurrence of misconduct as opposed to 3 years after the discovery of the misconduct. Staff makes no judgement on the appropriateness of this difference.

2. Proponent Arguments

According to the California Correctional Supervisors Organization,

Under current law, there is an unreasonable large window of time – three years – for state agencies to take action against an employee after the alleged wrongdoing has been initially discovered. This long time-frame raises serious due process issues and makes it difficult for an employee to defend their actions, since witnesses who might support their position may be no longer available after such an extended period of time has elapsed.

3. Opponent Arguments:

None received.

4. Prior Legislation:

SB 646 (Galgiani, 2017) would have prohibited an adverse action based on a cause for discipline discovered on or after January 1, 2018, from being valid against any state employee for any cause for discipline based on any civil service law of California, unless the employer served notice of the adverse action within one year after the cause for discipline, excluding actions of fraud, embezzlement or falsification of records. This bill died on the Assembly Inactive File.

AB 769 (Jones Sawyer, 2015) would have required that any adverse action taken against a state employee for any cause for discipline, other than for fraud, embezzlement, or the falsification of records, or the unauthorized accessing or disclosure of confidential tax information be served, and the investigation completed, within one year after the cause of discipline arose. Governor Brown vetoed the bill and stated that:

“I am unwilling to reduce longstanding civil service adverse action timeframes because it may take state agencies longer than a year to investigate and serve adverse actions in complex cases involving employee misconduct or unsatisfactory work performance. Further, this bill hinders the progressive discipline process which is intended to give employees a reasonable amount of time to correct problems at an early stage. As such, this bill makes it more difficult for the state to manage and ensure the integrity of its workforce.”

AB 811 (Salas, 2015) would have required that any adverse action taken against a state employee for any cause for discipline be served within one year after the discovery of the cause for discipline first arose. The bill died in Assembly Appropriations Committee.

AB 1783 (Jones-Sawyer, 2014), as introduced, would have required that any adverse action taken against a state employee for any cause for discipline, other than for fraud, embezzlement, or the falsification of records, be served and the investigation completed within one year from the time the cause for discipline arose. AB 1783 was subsequently gutted and amended with non-related provisions.

SUPPORT

California Correctional Supervisors Organization, Inc. (Sponsor)

Association of California State Supervisors

Professional Engineers in California Government

OPPOSITION

None received.

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 1007

Author:(Jones-Sawyer)

As Amended Ver:May 16, 2019

Majority vote

SUMMARY:

Makes changes to existing statutory causes of discipline and adverse action relating to state employees, and applies a date certain for other causes for discipline, adverse action and notice requirement.

Major Provisions

1. Modifies, by expanding the list of causes for discipline and adverse actions against a state employee that are subject to the three-year notice requirement, to include the following:
2. Harassment on the basis of race, color, religion, sex, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information.
3. Sexual assault.
4. The subject of a criminal investigation or criminal prosecution for a felony.
5. Provides that if the cause for discipline was discovered on or after January 1, 2020, no adverse action is valid against any state employee for any cause for discipline based on any civil service law of the state, unless notice of the adverse action is served within one year after the cause for discipline, upon which the notice is based, first arose.

COMMENTS:

Clarifying the Notice Requirement Periods

Causes for discipline and adverse actions based on fraud, embezzlement and falsification of records currently are subject to a three-year notice requirement. This measure adds harassment, sexual assault, and the subject of a criminal investigation or criminal prosecution of a felony to the existing list of causes for discipline that also would be subject to the three-year notice requirement. All other causes for discipline discovered on and after January 1, 2020, would be subject to the one-year notice requirement.

According to the Author:

"This bill makes necessary changes to help employees and the state resolve cases in a timely manner. The existing three year window to close cases of employee discipline hurts employees and the state. First, it means that in cases where an employee violation is ultimately found, that the state allowed that individual to continue their inappropriate conduct. Second, in cases where an investigation finds that a violation did not occur, an innocent employee must put their career and life on hold for up to three years. Finally, the long timeframe to investigate employee violations can lead to a waste in state dollars, time and resources.

'Assembly Bill 1007 will increase accountability in state government by decreasing the time necessary to bring forth disciplinary action from three years to one year, except in cases of fraud, embezzlement, falsification of records or sexual harassment. Ensuring the highest standard of integrity for state employees means holding individuals accountable for their actions in a timely manner."

Arguments in Support:

"The due process issues created by [the] extended time [under current law] in which to take action are serious ones. During a three-year period of investigating and hearings after the investigation is complete, many of the witnesses for the state or for the employee may have retired, left state service for the private sector, or could not recollect accurately after a three-year time period. This diminishes the ability of the employee to mount a defense in a hearing.

'Changing California law to require the investigation for other state employees to be completed within one year of the date of discovery is reasonable and it will preserve due process rights for the employee."

Arguments in Opposition:

None one file.

FISCAL COMMENTS:

According to the Assembly Appropriations Committee, this bill would result in unknown, but likely a significant fiscal impact across state employers. Specific costs to each department will depend on the number of adverse actions and their complexities. However, a reduced timeline for departments to complete this process will place pressure on existing staff, either leading to overtime costs or the need to bring on additional staff.

VOTES:

ASM PUBLIC EMPLOYMENT AND RETIREMENT: 5-1-1

YES: Rodriguez, Levine, Cooley, Cooper, O'Donnell

NO: Fong

ABS, ABST OR NV: Voepel

ASM APPROPRIATIONS: 13-5-0

YES: Gonzalez, Bloom, Bonta, Calderon, Carrillo, Chau, Eggman, Gabriel, Eduardo Garcia, Maienschein, Petrie-Norris, Quirk, Robert Rivas

NO: Bigelow, Brough, Diep, Fong, Obernolte

UPDATED:

VERSION: May 16, 2019

CONSULTANT: Michael Bolden / P.E. & R. / (916) 319-3957 FN: 0000487

Date of Hearing: May 1, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 1007

Author:(Jones-Sawyer) – As Amended Ver:March 25, 2019

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill reduces, from three years to one year, the timeframe in which the state has to provide notice of an adverse action to an employee, except in cases of fraud, embezzlement, falsification of records, harassment and sexual assault. This new timeframe applies only to causes of discipline discovered on or after January 1, 2020.

FISCAL EFFECT:

Unknown, but likely significant fiscal impact across state employers. Specific costs to each department will depend on the number of adverse actions and their complexities. However, a reduced timeline for departments to complete this process will place pressure on existing staff, either leading to overtime costs or the need to bring on additional staff.

COMMENTS:

1. Background and purpose. Existing law allows an employer to take “adverse action” against a state employee for specified causes, but that action must be taken within three years of the cause for discipline, or in the case of fraud, embezzlement or falsification, within three years after the discovery of the activity. State agencies have previously explained that this three-year window is necessary because the discipline process can include time-consuming activities such as interviewing witnesses, reviewing evidence and working with affected parties. Moreover, in some cases, the cause for disciple may not be discovered until months, or even years, after it occurred.

According to supporters, the current three-year timeframe represents a due process issue because of its impact on an employee’s career. While an investigation is ongoing, an employee will typically be moved from their position and now allowed to transfer or promote. Supporters contend this process halts the employee’s career even if the employee is found innocent.

1. Recent legislation. AB 1007 follows a number of legislative efforts to shorten the timeframe for adverse action against a state employee to one year. Those efforts include: SB 646 (Galgiani), of the 2017-18 Legislative Session, which died on the Assembly Inactive File, and AB 769 (Jones-Sawyer), of the 2015-16 Legislative Session, which was vetoed by the governor. The governor’s veto message stated:

I am unwilling to reduce longstanding civil service adverse action timeframes because it may take state agencies longer than a year to investigate and serve adverse actions in complex cases involving employee misconduct or unsatisfactory work performance. Further, this bill hinders the progressive discipline process which is intended to give employees a reasonable amount of time to correct problems at an early stage. As such, this bill makes it more difficult for the state to manage and ensure the integrity of its workforce.

Analysis Prepared by: Luke Reidenbach / APPR. / (916) 319-2081

Date of Hearing: April 24, 2019

ASSEMBLY COMMITTEE ON PUBLIC EMPLOYMENT AND RETIREMENT

Freddie Rodriguez, Chair

ABPCA Bill Id:AB 1007 (

Author:Jones-Sawyer) – As Amended Ver:March 25, 2019

SUBJECT: State Civil Service Act: adverse action: notice

SUMMARY: Makes changes to causes of discipline and adverse action relating to state employees, as provided, and applies a date certain for other causes for discipline, adverse action and notice requirement. Specifically, this bill:

1. Modifies, by expanding the list of causes for discipline and adverse actions against a state employee that are subject to the three-year notice requirement, to include the following:
2. Harassment on the basis of race, color, religion, sex, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information.
3. Sexual assault.
4. Provides that if the cause for discipline was discovered on or after January 1, 2020, no adverse action is valid against any state employee for any cause for discipline based on any civil service law of the state, unless notice of the adverse action is served within one year after the cause for discipline, upon which the notice is based, first arose.

EXISTING LAW:

1. Authorizes an appointing power to take adverse action against a state employee for specified causes, and establishes administrative procedures for review of an adverse action by the State Personnel Board. An adverse action against a state employee is required to commence within three years of the cause for discipline, or in the case of fraud, embezzlement or falsification, within three years after the discovery of the activity.
2. Provides that no adverse action is valid against a state employee for a cause of discipline based on the state’s civil service laws, unless notice of the adverse action is served within three years after the cause for discipline for which the notice is based, first arose.
3. Provides that an adverse action based on fraud, embezzlement or falsification of records must be valid if notice of the action is served within three years after the discovery of the fraud, embezzlement or falsification.
4. Provides, pursuant to Section 1 of Article VII of the Constitution of California that the civil service includes every officer and employee of the state except as otherwise provided, and that in the civil service, permanent appointment and promotion be made under a general system based on merit ascertained by competitive examination.
5. Requires, pursuant to the Civil Service Act, state employment to be based on the merit principle; that appointments are based upon merit and fitness ascertained through practical and competitive examination; and that tenure of civil service employment is subject to good behavior.
6. Establishes the Public Safety Officers Procedural Bill of Rights Act (PSOBOR) prescribing various rights of public safety officers, as defined, with regard to representation, discrimination, discipline, and interrogation, as specified. Firefighting personnel, with the exception of a fire department's arson-investigating unit, are not covered by PSOBOR.
7. Establishes the Firefighters Procedural Bill of Rights Act establishing various rights of firefighters, paramedics and emergency medical technicians, as specified, with regard to political activity, interrogation, punitive action, and administrative appeals.
8. Contains the Bill of Rights for State Excluded Employees prescribing various rights and terms and conditions of employment for "excluded" employees, defined as state supervisory, managerial, and confidential employees, who are all exempted from statutes providing full collective bargaining rights.

FISCAL EFFECT: Unknown. This bill is flagged as fiscal by Legislative Counsel.

COMMENTS: According to the author, “[this bill] makes necessary changes to help employees and the state, resolve cases in a more timely manner. The existing three year window to close cases of employee discipline hurts employees and the state. First, it means that in cases where an employee violation is ultimately found, it means that the state allowed that individual to continue their inappropriate conduct. Second, in cases where an investigation finds that a violation did not occur, an innocent employee must put their career and life on hold for up to three years. Finally, the long timeframe to investigate employee violations can lead to a waste in state dollars, time and resources.

‘Assembly Bill 1007 will increase accountability in state government by decreasing the time necessary to bring forth disciplinary action from three years, to one year, except in cases of fraud, embezzlement, falsification of records or sexual harassment. Ensuring the highest standard of integrity for state employees means holding individuals accountable for their actions in a timely manner.”

1. Clarifying the Notice Requirement Periods

Below is an explanation to simplify and provide clarity as to the mechanics of this measure relating to certain actions that apply to the three-year notice requirement and those where a one-year notice requirements is required.

Relating to state employees and as stated under “Existing Law,” causes for discipline and adverse actions based on fraud, embezzlement and falsification of records are subject to a three-year notice requirement. This measure adds harassment, as specified, and sexual assault to the existing list of causes for discipline that also would be subject to the three-year notice requirements. All other causes for discipline discovered on and after January 1, 2020, would be subject to the one-year notice requirement.

1. Relevant Case Law

In a relevant ruling, the California Supreme Court held that public employees are entitled to a pre-disciplinary hearing and have certain due process rights on the job. Thus, a public employee must be given a written notice of proposed disciplinary action. The notice must include a statement of the nature of the proposed discipline, the effective date of the proposed discipline, the reasons for the discipline, the specific policy or rule violated, and a statement advising the employee of the right to respond orally or in writing (see, Skelly v. State Personnel Board (1975) 15 Cal.3d 194).

Relating to statutory construction and application of Section 19635 of the Government Code, which this bill seeks to amend, the court held that the three-year limitation statute applicable to disciplinary actions against state civil service employees for any cause based on any civil service law reflects legislative policy judgment and provides a compelling indication of the outer limit of delay which is reasonable in prosecution of a disciplinary action against an employee of the state university system under Section 89535 of the Education Code and, hence, such period is to be borrowed and unless excused, a delay in initiating disciplinary proceedings for more than the three years is unreasonable as a matter of law, (see, Brown v. California State Personnel Board (Trustees of California State Colleges and University System) App. 3 Dist. 1985).

1. Comments by Supporters

According to the California Correctional Supervisors Organization, “[i]n most cases a state employee suspected of wrongdoing will be moved from their position to another area and will not be allowed to transfer or promote until the investigation is complete. Quite often, because the state agency believes it has three years to complete an investigation, they will take the entire three years to complete the investigation from the date of discovery. This completely stops the employee’s career and puts that employee under duress for three years. Not only is this unfair to the employee who may be found innocent of any wrongdoing, but it does not reflect the legislative intent of this particular provision of current law.

“The due process issues created by this extended time in which to take action are serious ones. During a three-year period of investigating and hearings after the investigation is complete, many of the witnesses for the state or for the employee may have retired, left state service for the private sector, or could not recollect accurately after a three-year time period. This diminishes the ability of the employee to mount a defense in a hearing.

‘California peace officers have a one-year time limit to complete an investigation and present findings from the date of discovery of any wrongdoing they are suspected. Peace officer state employee cases are completed within one year from the date of discovery.

“Changing California law to require the investigation for other state employees to be completed within one year of the date of discovery is reasonable and it will preserve due process rights for the employee.”

1. Prior and Related Legislation

Senate Bill 646 (Galgiani, 2017) would have prohibited an adverse action based on a cause for discipline discovered on or after January 1, 2018, from being valid against any state employee for any cause for discipline based on any civil service law of California, unless the employer served notice of the adverse action within one year after the cause for discipline, excluding actions of fraud, embezzlement or falsification of records. This bill died on the Assembly Inactive File.

Assembly Bill 769 (Jones Sawyer, 2015) would have required that any adverse action taken against a state employee for any cause for discipline, other than for fraud, embezzlement, or the falsification of records, or the unauthorized accessing or disclosure of confidential tax information be served, and the investigation completed, within one year after the cause of discipline arose. This bill was vetoed by Governor Brown who stated that:

“I am unwilling to reduce longstanding civil service adverse action timeframes because it may take state agencies longer than a year to investigate and serve adverse actions in complex cases involving employee misconduct or unsatisfactory work performance. Further, this bill hinders the progressive discipline process which is intended to give employees a reasonable amount of time to correct problems at an early stage. As such, this bill makes it more difficult for the state to manage and ensure the integrity of its workforce.”

Assembly Bill 1744 (Portantino, 2010) would have established the Public Employees’ Bill of Rights Act to provide various rights and protections to non-excluded state civil service employees, and required that any adverse action taken against a state employee be initiated and investigation completed within one year of the cause for discipline. This bill was held in the Assembly Appropriations Committee.

Chapter 478, Statutes of 1990 (Senate Bill 2466, Green), provides for adverse action for causes of discipline and notice requirements currently in existing law. This measure substituted references to adverse actions for references to punitive actions, among other nonsubstantive changes.

REGISTERED SUPPORT / OPPOSITION:

Support

California Correctional Supervisors Organization, Inc. (Sponsor)

Professional Engineers in California Government

Opposition

None on file

Analysis Prepared by: Michael Bolden / P.E. & R. / (916) 319-3957