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Date	Status
Sep 30, 2020	Vetoed by Governor.
Sep 14, 2020	Enrolled and presented to the Governor at 4 p.m.
Aug 31, 2020	In Assembly. Concurrence in Senate amendments pending.
Aug 31, 2020	Read third time. Passed. Ordered to the Assembly. (Ayes 39. Noes 0.).
Aug 26, 2020	Read second time. Ordered to third reading.
Aug 25, 2020	Read third time and amended. Ordered to second reading.
Aug 20, 2020	From committee: Do pass. (Ayes 7. Noes 0.) (August 20).
Aug 13, 2020	In committee: Referred to APPR. suspense file.
Aug 6, 2020	From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on APPR.
Aug 1, 2020	From committee: Do pass and re-refer to Com. on APPR. with recommendation: To Consent Calendar. (Ayes 7. Noes 0.) (July 31). Re-referred to Com. on APPR.
Jul 2, 2020	Re-referred to Com. on RLS. pursuant to Senate Rule 29.10(c).
Jun 30, 2020	Read second time. Ordered to third reading.
Jun 29, 2020	From inactive file.
Sep 11, 2019	From committee: Be ordered to second reading pursuant to Senate Rule 28.8.
Sep 13, 2019	Ordered to inactive file at the request of Senator Hurtado.
Sep 11, 2019	From committee: Do pass and re-refer to Com. on APPR. (Ayes 5. Noes 2.) (September 11). Re-referred to Com. on APPR.
Sep 12, 2019	Read second time. Ordered to third reading.
Sep 11, 2019	Read second time. Ordered to third reading.
Sep 10, 2019	Joint Rule 61 suspended. (Ayes 29. Noes 8.)
Aug 26, 2019	Ordered to inactive file at the request of Senator Hill.
Jul 9, 2019	Read second time. Ordered to third reading.
Jul 8, 2019	From committee: Be ordered to second reading pursuant to Senate Rule 28.8.
Jul 2, 2019	From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on APPR.
Jun 25, 2019	In committee: Set, first hearing. Hearing canceled at the request of author.
Jun 19, 2019	From committee: Do pass and re-refer to Com. on APPR. (Ayes 5. Noes 0.) (June 19). Re-referred to Com. on APPR.
May 29, 2019	Referred to Com. on L., P.E. & R.
May 16, 2019	In Senate. Read first time. To Com. on RLS. for assignment.
May 16, 2019	Read third time. Passed. Ordered to the Senate.
May 9, 2019	Read second time. Ordered to Consent Calendar.
May 8, 2019	From committee: Do pass. To Consent Calendar. (Ayes 18. Noes 0.) (May 8).
Apr 25, 2019	From committee: Do pass and re-refer to Com. on APPR. with recommendation: To Consent Calendar. (Ayes 7. Noes 0.) (April 24). Re-referred to Com. on APPR.
Mar 25, 2019	Re-referred to Com. on L. & E.
Mar 21, 2019	From committee chair, with author's amendments: Amend, and re-refer to Com. on L. & E. Read second time and amended.
Feb 25, 2019	Read first time.
Feb 23, 2019	From printer. May be heard in committee March 25.
Feb 22, 2019	Introduced. To print.

Date	Description	Location	Votes
Aug 31, 2020	AB 1299 SALAS Concurrence in Senate Amendments	Assembly Floor	76 0 3 Passed
Aug 31, 2020	Assembly 3rd Reading AB1299 Salas et al. By Caballero	Senate Floor	39 0 1 Passed
Aug 20, 2020	Do pass	Senate Standing Committee on Appropriations	7 0 0 Passed
Aug 13, 2020	Placed on suspense file	Senate Standing Committee on Appropriations	7 0 0 Passed
Jul 31, 2020	Do pass, but first be re-referred to the Committee on [Appropriations] with the recommendation: To Consent Calendar	Senate Standing Committee on Public Safety	7 0 0 Passed
Sep 11, 2019	Do pass, but first be re-referred to the Committee on [Appropriations]	Senate Standing Committee on Environmental Quality	5 2 0 Passed
Jun 19, 2019	Do pass, but first be re-referred to the Committee on [Appropriations]	Senate Standing Committee on Labor, Public Employment and Retirement	5 0 0 Passed
May 16, 2019	AB 1299 Flora Consent Calendar Second Day Regular Session	Assembly Floor	73 0 6 Passed
May 8, 2019	Do pass. To Consent Calendar.	Assembly Standing Committee on Appropriations	18 0 0 Passed
Apr 24, 2019	Do pass and be re-referred to the Committee on [Appropriations] with recommendation: To Consent Calendar	Assembly Standing Committee on Labor and Employment	7 0 0 Passed

Key

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Against

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GOVERNOR'S VETO

GV Bill Id:AB 1299

Author:(Salas)

As Enrolled Ver:September 4, 2020

2/3 vote

SUMMARY:

Requires every law enforcement agency to notify the Commission on Peace Officers Standards and Training (POST) when an officer separates from employment, as specified.

The Senate Amendments:

Requires any law enforcement agency that employs specified peace officers to notify POST within 10 days after a peace officer employed by that agency is terminated, or resigns or retires with a pending complaint, charge, or investigation of a serious nature.

Provides that the required notification shall include, as applicable, a summary of the allegations known to the law enforcement agency at the time, and the status of any administrative appeal, as specified. Supplemental notification shall be provided once the appeal is exhausted. The supplemental notification shall indicate whether the termination was sustained.

States that if a peace officer resigns or retires with a pending complaint, charge, or investigation of a serious nature, the employing agency shall do all of the following:

Specify in the notification to POST that the officer has resigned or retired with a pending complaint, charge, or investigation;

Specify in the notification the specific nature of the complaint, charge, or investigation, including a brief summary of allegations;

Complete the investigation in a thorough and unbiased manner;

Complete the investigation within one year after the date the conduct was discovered, unless a reasonable extension is needed for any reason, as specified;

Within 10 days after completion of the investigation, report to POST on whether each charge of a serious nature was sustained, not sustained, unfounded , or exonerated, and

In the event of a sustained complaint of a serious nature, include a summary of facts in the report to POST.

Provides that an allegation, complaint, charge or investigation of a serious nature means one that in the opinion of the chief of police, sheriff, or other agency head would likely result in the termination, demotion, or suspension of the officer for 30 days or more, if the charge were sustained and the officer was still employed by the agency.

Requires POST include reported information in the peace officer's profile, in a manner that may be accessed by the subject of the profile, by any employing law enforcement agency of the subject of the profile, and by any law enforcement agency that is performing a pre-employment background investigation of the subject of the profile.

States that if an agency reports to POST that an investigation resulted in a finding that a charge is not sustained, unfounded, or exonerated POST shall remove any reference to the charge, complaint, or investigation from the person's profile.

Provides that if a court finds that a sustained finding of a serious nature was unfounded or not sustained, upon request of the law enforcement officer, POST shall remove any reference to the charge, complaint, or investigation from the peace officer's profile.

Authorizes POST to adopt regulations to implement the above reporting system.

Governor's Veto Message:

This bill would require an agency that employs specified peace officers to provide a notification to the Commission on Peace Officer Standards and Training (POST) when a peace officer is terminated, or if an officer leaves the agency with a complaint, charge, or investigation of a serious nature. This bill would also require said agency to complete the investigation as specified, within one year, and notify POST of its findings. The bill would require POST to make that information available to any law enforcement agency conducting a preemployment background investigation of the subject of the profile.

I agree with the intent of this legislation- officers with a history of misconduct should not be able to resign in lieu of termination and simply move to a different department without a completed investigation or file of misconduct. But this bill does not go far enough. I am concerned this bill will slow momentum for broader decertification measures in future legislative sessions. The Legislature has signaled that it will continue its work on decertification, and I support the development of legislation with a broader approach.

COMMENTS:

This bill requires any agency that employs peace officers to notify POST when an officer separates from employment, including detail of any termination or resignation in lieu of termination. This bill requires POST to include this information in an officer's profile, and to make this information available to any law enforcement agency conducting a pre-employment background check. This bill should prevent officers, who are terminated or resign with charges pending from being employed by another law enforcement agency.

According to the Author:

"This bill seeks to address the exploitation of "resigning in lieu of termination" that is common throughout law enforcement agencies. When an officer is being investigated for misconduct, they will sometimes resign before the investigation is complete or their employment is terminated. According to local police chief's and law enforcement groups, when this happens an investigation is usually halted and the officer and department will go their separate ways. This practice allows officers to make lateral moves to different departments. Throughout the hiring process, their superiors are often unaware of the prior investigations into the applicant's behavior. This tactic is exploited by problematic officers in order to avoid termination and to continuously seek employment at different law enforcement agencies. According to the Commission on Peace Officer Standards and Training (POST), there have been 10,368 resignations of full-time peace officers between 2015 and 2019.

"AB 1299 will remedy this issue by requiring law enforcement agencies to notify POST if an officer leaves the agency with a complaint, charge, or investigation pending, and would require the department to complete the investigation and notify the commission of its findings.

"AB 1299 will also require POST to include this information in an officer's profile so that law enforcement agencies are aware of an applicant's past investigations or complaints while conducting a pre-employment background investigation."

Arguments in Support:

According to the California State Sheriffs' Association, "AB 1299 would require every law enforcement agency to notify POST within 10 days after a peace officer employed by that agency separates from employment, including, without limitation, any termination, resignation or retirement. The bill also requires an employing agency to complete all investigations in a thorough and unbiased manner I fa peace officer resigns or retires with a pending complaint, charge, or investigation of a serious nature. POST would be required to include or exclude certain specified information in the officer's profile based on the results of an investigation.

"Sheriffs are aware of the challenges presented to the community and law enforcement agencies when peace officers violate policy or law. While officers should clearly have due process rights relative to employment and discipline considerations, it can be difficult to remove persons who should not be peace officers from the public employ. AB 1299 will provide law enforcement agencies, especially prospective employers, with important information about persons who formerly served as peace officers.

Arguments in Opposition:

None on file.

FISCAL COMMENTS:

According to the Senate Appropriations Committee:

State law enforcement agencies: Costs to individual state departments that employ peace officers vary, ranging from minor and absorbable to a significant, depending on the agency's current practice of handling investigations. For example, the departments of Justice and Fish and Wildlife and the University of California all report minimal costs associated with AB 1299.

California Highway Patrol, on the other hand, anticipates potential annual costs of $180,480 to comply with the investigatory piece of this measure^[1] and an additional $25,000 in one-time and $10,000 in ongoing costs to establish and maintain infrastructure to communicate with POST through a secure portal. (Special fund*)

Additionally, the Department of Corrections and Rehabilitation anticipates annual workload costs of approximately $534,000 and the need of 3.0 new personnel that would result from AB 1299. (General Fund)

Local law enforcement agencies: Unknown, potentially-significant costs in the aggregate to local law enforcement agencies to complete officer investigations and submit information to POST. Actual new costs to each agency would depend on its current practices. These costs likely would be reimbursable by the state if they surpass the threshold amount required to file a state mandate claim. Additionally, regardless of if a local agency, at its own option, incurs costs for practices that later are mandated by the state, the state is required to reimburse the agency for those costs once the mandate becomes operative. The extent of the reimbursement would be determined by the Commission on State Mandates. Considering that there are over 500 local law enforcement agencies across the state, costs to comply with this measure could be in the tens of thousands of dollars to hundreds of thousands of dollars in the aggregate. (General Fund, local funds)

VOTES:

ASM LABOR AND EMPLOYMENT: 7-0-0

YES: Kalra, Flora, Carrillo, Diep, Gonzalez, Jones-Sawyer, Luz Rivas

ASM APPROPRIATIONS: 18-0-0

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

ASSEMBLY FLOOR: 74-0-6

YES: Aguiar-Curry, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooper, Cunningham, Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Gabriel, Gallagher, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, O'Donnell, Obernolte, Patterson, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Voepel, Waldron, Weber, Wicks, Wood, Rendon

ABS, ABST OR NV: Arambula, Burke, Cooley, Friedman, Cristina Garcia, Ting

SENATE FLOOR: 39-0-1

YES: Allen, Archuleta, Atkins, Bates, Beall, Borgeas, Bradford, Caballero, Chang, Dahle, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Grove, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Melendez, Mitchell, Monning, Moorlach, Morrell, Nielsen, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener, Wilk

ABS, ABST OR NV: Jones

ASSEMBLY FLOOR: 76-0-3

YES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Megan Dahle, Daly, Diep, Flora, Fong, Friedman, Gabriel, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Waldron, Weber, Wicks, Wood, Rendon

ABS, ABST OR NV: Eggman, Frazier, Voepel

UPDATED:

VERSION: September 4, 2020

CONSULTANT: Gregory Pagan / PUB. S. / (916) 319-3744 FN: 0003730

California Highway Patrol reports that the investigatory requirements of AB 1299 would affect approximately 15 to 20 cases a year. ↑

(Without Reference to File)

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1299

Author:(Salas)

As Amended Ver:August 25, 2020

Majority vote

SUMMARY:

Requires every law enforcement agency to notify the Commission on Peace Officers Standards and Training (POST) when an officer separates from employment, as specified.

The Senate Amendments:

Requires any law enforcement agency that employs specified peace officers to notify POST within 10 days after a peace officer employed by that agency is terminated, or resigns or retires with a pending complaint, charge, or investigation of a serious nature.
Provides that the required notification shall include, as applicable, a summary of the allegations known to the law enforcement agency at the time, and the status of any administrative appeal, as specified. Supplemental notification shall be provided once the appeal is exhausted. The supplemental notification shall indicate whether the termination was sustained.
States that if a peace officer resigns or retires with a pending complaint, charge, or investigation of a serious nature, the employing agency shall do all of the following:
1. Specify in the notification to POST that the officer has resigned or retired with a pending complaint, charge, or investigation;
2. Specify in the notification the specific nature of the complaint, charge, or investigation, including a brief summary of allegations;
3. Complete the investigation in a thorough and unbiased manner;
4. Complete the investigation within one year after the date the conduct was discovered, unless a reasonable extension is needed for any reason, as specified;
5. Within 10 days after completion of the investigation, report to POST on whether each charge of a serious nature was sustained, not sustained, unfounded , or exonerated, and
6. In the event of a sustained complaint of a serious nature, include a summary of facts in the report to POST.
Provides that an allegation, complaint, charge or investigation of a serious nature means one that in the opinion of the chief of police, sheriff, or other agency head would likely result in the termination, demotion, or suspension of the officer for 30 days or more, if the charge were sustained and the officer was still employed by the agency.
Requires POST include reported information in the peace officer's profile, in a manner that may be accessed by the subject of the profile, by any employing law enforcement agency of the subject of the profile, and by any law enforcement agency that is performing a pre-employment background investigation of the subject of the profile.
States that if an agency reports to POST that an investigation resulted in a finding that a charge is not sustained, unfounded, or exonerated POST shall remove any reference to the charge, complaint, or investigation from the person's profile.
Provides that if a court finds that a sustained finding of a serious nature was unfounded or not sustained, upon request of the law enforcement officer, POST shall remove any reference to the charge, complaint, or investigation from the peace officer's profile.
Authorizes POST to adopt regulations to implement the above reporting system.

COMMENTS:

According to the Author:

Arguments in Support:

"Sheriffs are aware of the challenges presented to the community and law enforcement agencies when peace officers violate policy or law. While officers should clearly have due process rights relative to employment and discipline considerations, it can be difficult to remove persons who should not be peace officers from the public employ. AB 1299 will provide law enforcement agencies, especially prospective employers, with important information about persons who formerly served as peace officers.

Arguments in Opposition:

None on file.

FISCAL COMMENTS:

According to the Senate Appropriations Committee:

State law enforcement agencies: Costs to individual state departments that employ peace officers vary, ranging from minor and absorbable to a significant, depending on the agency's current practice of handling investigations. For example, the departments of Justice and Fish and Wildlife and the University of California all report minimal costs associated with AB 1299.

Local law enforcement agencies: Unknown, potentially-significant costs in the aggregate to local law enforcement agencies to complete officer investigations and submit information to POST. Actual new costs to each agency would depend on its current practices. These costs likely would be reimbursable by the state if they surpass the threshold amount required to file a state mandate claim. Additionally, regardless of if a local agency, at its own option, incurs costs for practices that later are mandated by the state, the state is required to reimburse the agency for those costs once the mandate becomes operative. The extent of the reimbursement would be determined by the Commission on State Mandates. Considering that there are over 500 local law enforcement agencies across the state, costs to comply with this measure could be in the tens of thousands of dollars to hundreds of thousands of dollars in the aggregate. (General Fund, local funds)

VOTES:

ASM LABOR AND EMPLOYMENT: 7-0-0

YES: Kalra, Flora, Carrillo, Diep, Gonzalez, Jones-Sawyer, Luz Rivas

ASM APPROPRIATIONS: 18-0-0

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

ASSEMBLY FLOOR: 74-0-6

ABS, ABST OR NV: Arambula, Burke, Cooley, Friedman, Cristina Garcia, Ting

UPDATED:

VERSION: August 25, 2020

CONSULTANT: Gregory Pagan / PUB. S. / (916) 319-3744 FN: 0003510

California Highway Patrol reports that the investigatory requirements of AB 1299 would affect approximately 15 to 20 cases a year. ↑

SENATE RULES COMMITTEE

Office of Senate Floor Analyses

(916) 651-1520 Fax: (916) 327-4478

AB 1299

THIRD READING

Bill No: AB 1299

Author: Salas (D), et al.

Amended: 8/25/20 in Senate

Vote: 21

PRIOR VOTES NOT RELEVANT

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 7/31/20 (Pursuant to Senate Rule 29.10)

AYES: Skinner, Moorlach, Bradford, Jackson, Mitchell, Morrell, Wiener

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/20/20

AYES: Portantino, Bates, Bradford, Hill, Jones, Leyva, Wieckowski

SUBJECT: Peace officers: employment

SOURCE: Author

DIGEST:

This bill creates a rubric at the Commission on Peace Officer Standards and Training (POST) for information on investigations and results of sustained findings of misconduct to be housed and accessed by law enforcement agencies conducting pre-employment background investigations on candidates for employment.

Senate Floor Amendments of 8/25/20 (1) change the term "serious misconduct" to "serious nature;" (2) exempt agencies that do not report to POST; and (3) establish a 12 month timeline for agencies to complete their misconduct investigation.

ANALYSIS:

Existing law:

Requires peace officers to meet all of the following minimum standards (Gov. Code, § 1031):
1. Be a citizen of the United States or a permanent resident alien who is eligible for and has applied for citizenship, except as specified;
2. Be at least 18 years of age;
3. Be fingerprinted for purposes of search of local, state, and national fingerprint files to disclose a criminal record;
4. Be of good moral character, as determined by a thorough background investigation;
5. Be a high school graduate, pass the General Education Development Test or other high school equivalency test approved by the State Department of Education that indicates high school graduation level, pass the California High School Proficiency Examination, or have attained a two-year, four-year, or advanced degree from an accredited college or university; and
6. Be found to be free from any physical, emotional, or mental condition that might adversely affect the exercise of the powers of a peace officer.
7. Physical condition shall be evaluated by a licensed physician and surgeon;
8. Emotional and mental condition shall be evaluated by either of the following:
  1. A physician and surgeon who holds a valid California license to practice medicine, has successfully completed a postgraduate medical residency education program in psychiatry, and has a specified amount of experience; or
  2. A psychologist licensed by the California Board of Psychology with a specified amount of experience.
States that the physician and surgeon or psychologist shall also have met any applicable education and training procedures set forth by the California Commission on Peace Officer Standards and Training designed for the conduct of pre-employment psychological screening of peace officers. (Gov. Code, § 1031)
Specifies that the peace officer requirements do not preclude the adoption of additional or higher standards, including age. (Gov. Code, § 1031, subd. (g).)
States that for purposes of performing a thorough background investigation for applicants not currently employed as a peace officer, an employer shall disclose employment information relating to a current or former employee, upon request of a law enforcement agency, if all of the following conditions are met (Gov. Code, § 1031.1.):
1. The request is made in writing;
2. The request is accompanied by a notarized authorization by the applicant releasing the employer of liability; and
3. The request and the authorization are presented to the employer by a sworn officer or other authorized representative of the employing law enforcement agency.
Requires every peace officer candidate be the subject of employment history checks through contacts with all past and current employers over a period of at least ten years, as listed on the candidate's personal history statement. (Code of Regulations, Title 11, § 1953, subd. (e)(6).)
Requires proof of the employment history check be documented by a written account of the information provided and source of that information for each place of employment contacted. All information requests shall be documented. (Code of Regulations, Title 11, § 1953, subd. (e)(6).)
States that if a peace officer candidate was initially investigated in accordance with all current requirements and the results are available for review, a background investigation update, as opposed to a complete new background investigation, may be conducted for either of the following circumstances: (Code of Regulations, Title 11, § 1953, subd. (f)(a).)
1. The peace officer candidate is being reappointed to the same POST-participating department. Per regulations, a background investigation update on a peace officer who is reappointed within 180 days of voluntary separation is at the discretion of the hiring authority; or
2. The peace officer candidate is transferring, without a separation, to a different department; however, the new department is within the same city, county, state, or district that maintains a centralized personnel and background investigation support division.
Requires each department or agency in this state that employs peace officers to establish a procedure to investigate complaints by members of the public against the personnel of these departments or agencies, and shall make a written description of the procedure available to the public. (Pen. Code, § 832.5, subd. (a)(1).)

This bill:

Requires that every law enforcement agency shall notify the Commission on Peace Officer Standards and Training (POST) within 10-days when a peace officer separates from employment.
Specifies that the notification to POST shall include a factual summary of the circumstances of any termination or any resignation in lieu of termination.
Requires that if a peace officer resigns or retires with a pending complaint, charge, or investigation of a serious nature, the employing agency shall do the following:
1. Specify in the notification to the commission that the officer resigned or retired with a pending complaint, charge, or investigation.
2. Specify in the notification the specific nature of the complaint, charge, or investigation, including a brief summary of the allegations.
3. Complete the investigation in a thorough and unbiased manner.
4. Upon completion of the investigation, report to the commission on whether the charges were sustained, not sustained, or unfounded.
5. In the event of a sustained complaint, include a summary of facts.
Specifies that complaints of a “serious nature” means complaints that would likely result in termination, demotion, or suspension of the officer for 30-days or more if the charges were sustained and the officer had been employed by the agency.
Requires that POST shall include the information reported pursuant to this section in an officer’s profile, in a manner that may be accessed by the subject of the profile, by an employing agency of the subject of the profile, and by any law enforcement agency that is performing a pre-employment background investigation of the subject of the profile.
Provides that if an agency reports to POST that an investigation resulted in a finding that a charge is not sustained or unfounded, the commission shall remove any reference to the charge, complaint, or investigation from the person’s profile.

Background

Government Code § 1031 establishes the minimum standards needed to qualify as a peace officer. One of the requirements is that the individual be of good moral character, as determined by a thorough background investigation. (Gov. Code, § 1031, subd. (d).). That statute does not provide a further description of the requirements of that background check generally, nor does it specify what type of background check is required for an individual that is currently a peace officer and is applying for a job as a peace officer with a new law enforcement agency.

That section does allow for a background information update, as opposed to a complete new background investigation under limited circumstances for individuals that have already completed a peace officer background investigation. Section 1953 does not specify whether a current peace officer undergoing a new background check, or an updated background check must give the hiring agency access to personnel files for any law enforcement agency at which the officer has previously worked. Section 1953 does not specify whether an applicant must authorize the hiring agency access to personnel records that would otherwise be confidential under law.

AB 2327 (Quirk, Chapter 966, Statutes of 2018) codified that peace officers seeking employment with a law enforcement agency must give written permission for the hiring law enforcement agency to view his or her general personnel file and any separate disciplinary file. The new law also required that each law enforcement agency to make a record of any investigations of misconduct involving a peace officer in his or her general personnel file or a separate file designated by the department or agency. The bill did not, however, require law enforcement agencies to look at the prior personnel records of potential hires.

It has traditionally been common practice for hiring law enforcement agencies to require prospective applicants to sign authorizations for the hiring agency to access records from previous employers. It seems that the authorizations typically include permission to access an applicant’s disciplinary records if that applicant had previously been employed as a peace officer with another agency.

Given the liability risk of hiring an officer with a disciplinary record as a peace officer, one would expect that hiring agencies would be vigilant in checking on an applicant’s employment background, particularly if that employment was with another law enforcement agency. Hiring law enforcement agencies have a strong incentive to require peace officer applicants to sign authorizations giving the hiring agency access to law enforcement personnel records that would ordinarily be confidential. To the extent an applicant who was a peace officer at another agency does not give authorization for the hiring agency to check his or her disciplinary record at the previous agency, such a refusal should set off alarm bells for the hiring agency. However, despite these incentives, agencies are not required under state law to conduct these pre-employment checks of prior personnel records.

This bill creates a rubric POST for information on investigations and results of sustained findings of misconduct to be housed and accessed by law enforcement agencies conducting pre-employment background investigations on candidates for employment. By centralizing the location and housing of the information and making the information available to law enforcement agencies seeking to conduct a pre-employment background check on potential hires this bill incentivizes a more thorough examination of an officer’s employment history.

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

According to the Senate Appropriations Committee:

State law enforcement agencies: Costs to individual state departments that employ peace officers vary, ranging from minor and absorbable to a significant, depending on the agency’s current practice of handling investigations. For example, the departments of Justice and Fish and Wildlife and the University of California all report minimal costs associated with AB 1299.

California Highway Patrol, on the other hand, anticipates potential annual costs of $180,480 to comply with the investigatory piece of this measure and an additional $25,000 in one-time and $10,000 in ongoing costs to establish and maintain infrastructure to communicate with POST through a secure portal. (Special fund*)

Local law enforcement agencies: Unknown, potentially-significant costs in the aggregate to local law enforcement agencies to complete officer investigations and submit information to POST. Actual new costs to each agency would depend on its current practices. These costs likely would be reimbursable by the state if they surpass the threshold amount required to file a state mandate claim. Additionally, regardless of if a local agency, at its own option, incurs costs for practices that later are mandated by the state, the state is required to reimburse the agency for those costs once the mandate becomes operative. The extent of the reimbursement would be determined by the Commission on State Mandates. Considering that there are over 500 local law enforcement agencies across the state, costs to comply with this measure could be in the tens of thousands of dollars to hundreds of thousands of dollars in the aggregate. (General Fund, local funds)

SUPPORT: (Verified 8/20/20)

Asian Americans Advancing Justice – California

AT&T

California Faculty Association

California State Sheriffs’ Association

City of Alameda

Hanford Police Department

National Association of Social Workers – California
Peace Officers Research Association of California

OPPOSITION: (Verified 8/20/20)

None received

Prepared by: Gabe Caswell / PUB. S. /

8/26/20 14:32:01

**** END ****

SENATE RULES COMMITTEE

Office of Senate Floor Analyses

(916) 651-1520 Fax: (916) 327-4478

AB 1299

THIRD READING

Bill No: AB 1299

Author: Salas (D), et al.

Amended: 8/6/20 in Senate

Vote: 21

PRIOR VOTES NOT RELEVANT

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 7/31/20 (Pursuant to Senate Rule 29.10)

AYES: Skinner, Moorlach, Bradford, Jackson, Mitchell, Morrell, Wiener

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/20/20

AYES: Portantino, Bates, Bradford, Hill, Jones, Leyva, Wieckowski

SUBJECT: Peace officers: employment

SOURCE: Author

DIGEST:

ANALYSIS:

Existing law:

Requires peace officers to meet all of the following minimum standards (Gov. Code, § 1031):
1. Be a citizen of the United States or a permanent resident alien who is eligible for and has applied for citizenship, except as specified;
2. Be at least 18 years of age;
3. Be fingerprinted for purposes of search of local, state, and national fingerprint files to disclose a criminal record;
4. Be of good moral character, as determined by a thorough background investigation;
5. Be a high school graduate, pass the General Education Development Test or other high school equivalency test approved by the State Department of Education that indicates high school graduation level, pass the California High School Proficiency Examination, or have attained a two-year, four-year, or advanced degree from an accredited college or university; and
6. Be found to be free from any physical, emotional, or mental condition that might adversely affect the exercise of the powers of a peace officer.
7. Physical condition shall be evaluated by a licensed physician and surgeon;
8. Emotional and mental condition shall be evaluated by either of the following:
  1. A physician and surgeon who holds a valid California license to practice medicine, has successfully completed a postgraduate medical residency education program in psychiatry, and has a specified amount of experience; or
  2. A psychologist licensed by the California Board of Psychology with a specified amount of experience.
States that the physician and surgeon or psychologist shall also have met any applicable education and training procedures set forth by the California Commission on Peace Officer Standards and Training designed for the conduct of pre-employment psychological screening of peace officers. (Gov. Code, § 1031)
Specifies that the peace officer requirements do not preclude the adoption of additional or higher standards, including age. (Gov. Code, § 1031, subd. (g).)
States that for purposes of performing a thorough background investigation for applicants not currently employed as a peace officer, an employer shall disclose employment information relating to a current or former employee, upon request of a law enforcement agency, if all of the following conditions are met (Gov. Code, § 1031.1.):
1. The request is made in writing;
2. The request is accompanied by a notarized authorization by the applicant releasing the employer of liability; and
3. The request and the authorization are presented to the employer by a sworn officer or other authorized representative of the employing law enforcement agency.
Requires every peace officer candidate be the subject of employment history checks through contacts with all past and current employers over a period of at least ten years, as listed on the candidate's personal history statement. (Code of Regulations, Title 11, § 1953, subd. (e)(6).)
Requires proof of the employment history check be documented by a written account of the information provided and source of that information for each place of employment contacted. All information requests shall be documented. (Code of Regulations, Title 11, § 1953, subd. (e)(6).)
States that if a peace officer candidate was initially investigated in accordance with all current requirements and the results are available for review, a background investigation update, as opposed to a complete new background investigation, may be conducted for either of the following circumstances: (Code of Regulations, Title 11, § 1953, subd. (f)(a).)
1. The peace officer candidate is being reappointed to the same POST-participating department. Per regulations, a background investigation update on a peace officer who is reappointed within 180 days of voluntary separation is at the discretion of the hiring authority; or
2. The peace officer candidate is transferring, without a separation, to a different department; however, the new department is within the same city, county, state, or district that maintains a centralized personnel and background investigation support division.
Requires each department or agency in this state that employs peace officers to establish a procedure to investigate complaints by members of the public against the personnel of these departments or agencies, and shall make a written description of the procedure available to the public. (Pen. Code, § 832.5, subd. (a)(1).)

This bill:

Requires that every law enforcement agency shall notify the Commission on Peace Officer Standards and Training (POST) within 10-days when a peace officer separates from employment.
Specifies that the notification to POST shall include a factual summary of the circumstances of any termination or any resignation in lieu of termination.
Requires that if a peace officer resigns or retires with a pending complaint, charge, or investigation of a serious nature, the employing agency shall do the following:
1. Specify in the notification to the commission that the officer resigned or retired with a pending complaint, charge, or investigation.
2. Specify in the notification the specific nature of the complaint, charge, or investigation, including a brief summary of the allegations.
3. Complete the investigation in a thorough and unbiased manner.
4. Upon completion of the investigation, report to the commission on whether the charges were sustained, not sustained, or unfounded.
5. In the event of a sustained complaint, include a summary of facts.
Specifies that complaints of a “serious nature” means complaints that would likely result in termination, demotion, or suspension of the officer for 30-days or more if the charges were sustained and the officer had been employed by the agency.
Requires that POST shall include the information reported pursuant to this section in an officer’s profile, in a manner that may be accessed by the subject of the profile, by an employing agency of the subject of the profile, and by any law enforcement agency that is performing a pre-employment background investigation of the subject of the profile.
Provides that if an agency reports to POST that an investigation resulted in a finding that a charge is not sustained or unfounded, the commission shall remove any reference to the charge, complaint, or investigation from the person’s profile.

Background

The California Code of Regulations, Title 11, § 1953 provides further specifications on the required background investigation for peace officers. Section 1953 mandates that every peace officer candidate shall be the subject of employment history checks through contacts with all past and current employers over a period of at least ten years, as listed on the candidate's personal history statement and requires that proof of the employment history check shall be documented by a written account of the information provided and source of that information for each place of employment contacted.

That section does allow for a background information update, as opposed to a complete new background investigation under limited circumstances for individuals that have already completed a peace officer background investigation. Section 1953 does not specify whether a current peace officer undergoing a new background check, or an updated background check must give the hiring agency access to personnel files for any law enforcement agency at which the officer has previously worked. Section 1953 does not specify whether an applicant must authorize the hiring agency access to personnel records that would otherwise be confidential under law.

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

According to the Senate Appropriations Committee:

State law enforcement agencies: Costs to individual state departments that employ peace officers vary, ranging from minor and absorbable to a significant, depending on the agency’s current practice of handling investigations. For example, the departments of Justice and Fish and Wildlife and the University of California all report minimal costs associated with AB 1299.

Local law enforcement agencies: Unknown, potentially-significant costs in the aggregate to local law enforcement agencies to complete officer investigations and submit information to POST. Actual new costs to each agency would depend on its current practices. These costs likely would be reimbursable by the state if they surpass the threshold amount required to file a state mandate claim. Additionally, regardless of if a local agency, at its own option, incurs costs for practices that later are mandated by the state, the state is required to reimburse the agency for those costs once the mandate becomes operative. The extent of the reimbursement would be determined by the Commission on State Mandates. Considering that there are over 500 local law enforcement agencies across the state, costs to comply with this measure could be in the tens of thousands of dollars to hundreds of thousands of dollars in the aggregate. (General Fund, local funds)

SUPPORT: (Verified 8/20/20)

Asian Americans Advancing Justice – California

AT&T

California Faculty Association

California State Sheriffs’ Association

City of Alameda

Hanford Police Department

National Association of Social Workers – California
Peace Officers Research Association of California

OPPOSITION: (Verified 8/20/20)

None received

Prepared by: Gabe Caswell / PUB. S. /

8/21/20 17:54:21

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

AB 1299 (Salas) - Peace officers: employment


Version: August 6, 2020	Policy Vote: PUB. S. 7 - 0
Urgency: No	Mandate: Yes
Hearing Date: August 13, 2020	Consultant: Shaun Naidu

Bill Summary:

AB 1299 would require law enforcement agencies to notify the Commission on Peace Officer Standards and Training (POST) when a peace officer separates from employment and when an officer does so with a pending complaint, charge, or investigation of a serious nature. It also would require the agency to complete the investigation and report the outcome to POST, which would be required to maintain the information in a manner accessible to the officer, the employing agency, and any prospective employing agency.

Fiscal Impact:

State law enforcement agencies: Costs to individual state departments that employ peace officers vary, ranging from minor and absorbable to a significant, depending on the agency’s current practice of handling investigations. For example, the departments of Justice and Fish and Wildlife and the University of California all report minimal costs associated with AB 1299.

Local law enforcement agencies: Unknown, potentially-significant costs in the aggregate to local law enforcement agencies to complete officer investigations and submit information to POST. Actual new costs to each agency would depend on its current practices. These costs likely would be reimbursable by the state if they surpass the threshold amount required to file a state mandate claim. Additionally, regardless of if a local agency, at its own option, incurs costs for practices that later are mandated by the state, the state is required to reimburse the agency for those costs once the mandate becomes operative. The extent of the reimbursement would be determined by the Commission on State Mandates. Considering that there are over 500 local law enforcement agencies across the state, costs to comply with this measure could be in the tens of thousands of dollars to hundreds of thousands of dollars in the aggregate. (General Fund, local funds)

*Motor Vehicle Account, State Transportation Fund

Background:

Existing law prescribes certain minimum standards for a person to be appointed as a peace officer, including, among other criteria, moral character, and certain disqualifying factors, including a felony conviction. Additionally, each department or agency that employs peace officers must establish a procedure to investigate complaints by members of the public against the personnel of the department or agency. Complaints and any reports or findings related to the complaints must be retained, and all complaints retained may be maintained in the peace officer’s general personnel file or in a separate file designated by the department or agency. Existing law requires that a peace officer who is seeking employment with a department or agency in California that employs peace officers to give written permission for the hiring department or agency to view the officer’s general personnel file and any separate file designated by a department or agency.

Proposed Law:

This bill would:

Require any agency that employs peace officers to notify POST when a peace officer separates from employment, including details of any termination or resignation in lieu of termination, within 10 days of the separation.
Require an agency to notify POST if an officer leaves the agency with a pending complaint, charge, or investigation that likely would result in the officer’s termination, demotion, or suspension for at least 30 days if sustained.
Require the agency to complete the investigation and notify POST of its findings.
Require POST to include this information in an officer’s profile and make that information available to the officer, the employing agency, and a potential employing agency that is conducting a pre-employment background investigation of the officer.
Require POST to remove any reference to the charge, complaint, or investigation from the officer’s profile if an agency reports that the investigation resulted in a finding that the charge is not sustained or unfounded.
Allow POST to adopt regulations to carry out the provisions of this measure.

Related Legislation:

AB 1599 (Cunningham, 2019-2020 Reg. Sess.) would require law enforcement agencies to complete initiated administrative investigations of officer misconduct related to specified uses of force, sexual assault, and dishonesty regardless of whether an officer leaves the employment of the agency. AB 1599 is pending in this Committee.

AB 2327 (Quirk, Ch. 966, Stats. 2018) required law enforcement agencies to keep records, as specified, of any investigations of misconduct involving a peace officer and required a peace officer who is seeking employment with a department to give permission for the hiring department to view the officer’s file.

Staff Comments: AB 1299 would require all agencies that employ a peace officer to report to POST all officers’ separation from employment as peace officers. The Department of Corrections and Rehabilitation employs peace officers who attend POST-certified training, such as members of the department’s Office of Correctional Safety, but the vast majority of peace officers employed by CDCR are custodial officer. These custodial officer, rather than participate in POST-certified training, attend the department’s academy, which is under the purview of the Commission on Correctional Peace Officers Standards and Training—that is, CPOST as opposed to POST. This measure would encompass all peace officers, including those individuals who did not attend (and are not required to attend) POST‐certified training.

-- END --

California Highway Patrol reports that the investigatory requirements of AB 1299 would affect approximately 15 to 20 cases a year. ↑

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2019 - 2020 Regular

Bill No: AB 1299 Hearing Date: July 31, 2020

Author:	Salas
Version:	June 29, 2020
Urgency:	No	Fiscal:	Yes
Consultant:	GC

Subject: Peace Officers: Employment

HISTORY

Source: Author

Prior Legislation: SB 1421 (Skinner), Ch. 988, Stats. of 2018

AB 2327 (Quirk), Ch. 966, Stats. of 2018

AB 1428 (Low), 2017, held on Senate Appropriations Suspense

AB 953 (Weber), Ch.466, Stats. 2015

AB 619 (Weber), 2015 held on Assm. Appropriations Suspense

SB 1286 (Leno), 2016, held Sen. Appropriations Suspense

AB 71 (Rodriguez), Ch. 462, Stats. 2015

SB 1019 (Romero), 2008, failed passage in Assembly Pub. Safety

AB 1648 (Leno), 2007, failed passage in Assembly Pub. Safety

Support: Asian Americans Advancing Justice – California; AT&T; California State Sheriffs’ Association; Hanford Police Department; National Association of Social Workers – California; Peace Officers Research Association of California (PORAC);

Opposition: None known

Assembly Floor Vote: Not relevant

PURPOSE

The purpose of this legislation is to create a rubric at the Commission on Peace Officer Standards and Training (POST) for information on investigations and results of sustained findings of misconduct to be housed and accessed by law enforcement agencies conducting pre-employment background investigations on candidates for employment.

Existing law requires peace officers to meet all of the following minimum standards (Gov. Code, § 1031):

Be a citizen of the United States or a permanent resident alien who is eligible for and has applied for citizenship, except as specified;
Be at least 18 years of age;
Be fingerprinted for purposes of search of local, state, and national fingerprint files to disclose a criminal record;
Be of good moral character, as determined by a thorough background investigation;
Be a high school graduate, pass the General Education Development Test or other high school equivalency test approved by the State Department of Education that indicates high school graduation level, pass the California High School Proficiency Examination, or have attained a two-year, four-year, or advanced degree from an accredited college or university; and
Be found to be free from any physical, emotional, or mental condition that might adversely affect the exercise of the powers of a peace officer.
- Physical condition shall be evaluated by a licensed physician and surgeon;
- Emotional and mental condition shall be evaluated by either of the following:
  - - A physician and surgeon who holds a valid California license to practice medicine, has successfully completed a postgraduate medical residency education program in psychiatry, and has a specified amount of experience; or
    - A psychologist licensed by the California Board of Psychology with a specified amount of experience.

States that the physician and surgeon or psychologist shall also have met any applicable education and training procedures set forth by the California Commission on Peace Officer Standards and Training designed for the conduct of pre-employment psychological screening of peace officers. (Gov. Code, § 1031)

Existing law specifies that the peace officer requirements do not preclude the adoption of additional or higher standards, including age. (Gov. Code, § 1031, subd. (g).)

Existing law states that for purposes of performing a thorough background investigation for applicants not currently employed as a peace officer, an employer shall disclose employment information relating to a current or former employee, upon request of a law enforcement agency, if all of the following conditions are met (Gov. Code, § 1031.1.):

The request is made in writing;
The request is accompanied by a notarized authorization by the applicant releasing the employer of liability; and
The request and the authorization are presented to the employer by a sworn officer or other authorized representative of the employing law enforcement agency.

Existing law requires every peace officer candidate be the subject of employment history checks through contacts with all past and current employers over a period of at least ten years, as listed on the candidate's personal history statement. (Code of Regulations, Title 11, § 1953, subd. (e)(6).)

Existing law requires proof of the employment history check be documented by a written account of the information provided and source of that information for each place of employment contacted. All information requests shall be documented. (Code of Regulations, Title 11, § 1953, subd. (e)(6).)

Existing law states that if a peace officer candidate was initially investigated in accordance with all current requirements and the results are available for review, a background investigation update, as opposed to a complete new background investigation, may be conducted for either of the following circumstances: (Code of Regulations, Title 11, § 1953, subd. (f)(a).)

The peace officer candidate is being reappointed to the same POST-participating department. Per regulations, a background investigation update on a peace officer who is reappointed within 180 days of voluntary separation is at the discretion of the hiring authority; or
The peace officer candidate is transferring, without a separation, to a different department; however, the new department is within the same city, county, state, or district that maintains a centralized personnel and background investigation support division.

Existing law requires each department or agency in this state that employs peace officers to establish a procedure to investigate complaints by members of the public against the personnel of these departments or agencies, and shall make a written description of the procedure available to the public. (Pen. Code, § 832.5, subd. (a)(1).)

Existing law requires complaints and any reports or findings relating to these complaints be retained for a period of at least five years. (Pen. Code, § 832.5, subd. (b).)

Existing law specifies prior to any official determination regarding promotion, transfer, or disciplinary action by an officer's employing department or agency, the complaints, as specified, shall be removed from the officer's general personnel file and placed in separate file designated by the department or agency, in accordance with all applicable requirements of law. (Pen. Code, § 832.5, subd. (b).)

Existing law states that each law enforcement agency shall annually furnish to the Department of Justice, a report of all instances when a peace officer employed by that agency is involved in any of the following: (Government Code, § 12525.2, subd. (a).)

An incident involving the shooting of a civilian by a peace officer;
An incident involving the shooting of a peace officer by a civilian;
An incident in which the use of force by a peace officer against a civilian results in serious bodily injury or death; and
An incident in which use of force by a civilian against a peace officer results in serious bodily injury or death.

Existing law specifies that each year, the Department of Justice (DOJ) shall include a summary of information contained in the use of force reports received through the department's OpenJustice Web portal. (Government Code, § 12525.2, subd. (c).)

Existing law includes within Department of Justice’s annual reporting requirements the number of citizens' complaints received by law enforcement agencies which shall indicate the total number of these complaints, the number alleging criminal conduct of either a felony or misdemeanor, and the number sustained in each category. (Pen. Code, § 13012, subd. (e).)

This bill requires that every law enforcement agency shall notify the Commission on Peace Officer Standards and Training (POST) within 10-days when a peace officer separates from employment.

This bill specifies that the notification to POST shall include a factual summary of the circumstances of any termination or any resignation in lieu of termination.

This bill requires that if a peace officer resigns or retires with a pending complaint, charge, or investigation of a serious nature, the employing agency shall do the following:

Specify in the notification to the commission that the officer resigned or retired with a pending complaint, charge, or investigation.
Specify in the notification the specific nature of the complaint, charge, or investigation, including a brief summary of the allegations.
Complete the investigation in a thorough and unbiased manner.
Upon completion of the investigation, report to the commission on whether the charges were sustained, not sustained, or unfounded.
In the event of a sustained complaint, include a summary of facts.

This bill specifies that complaints of a “serious nature” means complaints that would likely result in termination, demotion, or suspension of the officer for 30-days or more if the charges were sustained and the officer had been employed by the agency.

This bill requires that POST shall include the information reported pursuant to this section in an officer’s profile, in a manner that may be accessed by the subject of the profile, by an employing agency of the subject of the profile, and by any law enforcement agency that is performing a pre-employment background investigation of the subject of the profile.

This bill provides that if an agency reports to POST that an investigation resulted in a finding that a charge is not sustained or unfounded, the commission shall remove any reference to the charge, complaint, or investigation from the person’s profile.

COMMENTS

1. Need for This Bill

According to the author:

This bill seeks to address the exploitation of “resigning in lieu of termination” that is common throughout law enforcement agencies. When an officer is being investigated for misconduct, they will sometimes resign before the investigation is complete or their employment is terminated. According to local police chiefs and law enforcement groups, when this happens an investigation is usually halted and the officer and department will go their separate ways.

This practice allows officers to make lateral moves to different departments. Throughout the hiring process, their superiors are often unaware of the prior investigations into the applicant’s behavior. This tactic is exploited by problematic officers in order to avoid termination and to continuously seek employment at different law enforcement agencies. According to the Commission on Peace Officer Standards and Training (POST), there have been 10,368 resignations of full-time peace officers between 2015 and 2019.

2. Peace Officer Background Checks

AB 2327 (Quirk), 966, Stats. of 2018 codified that peace officers seeking employment with a law enforcement agency must give written permission for the hiring law enforcement agency to view his or her general personnel file and any separate disciplinary file. The new law also required that each law enforcement agency to make a record of any investigations of misconduct involving a peace officer in his or her general personnel file or a separate file designated by the department or agency. The bill did not, however, require law enforcement agencies to look at the prior personnel records of potential hires.

This bill would create a rubric POST for information on investigations and results of sustained findings of misconduct to be housed and accessed by law enforcement agencies conducting pre-employment background investigations on candidates for employment. By centralizing the location and housing of the information and making the information available to law enforcement agencies seeking to conduct a pre-employment background check on potential hires this bill would incentivize a more thorough examination of an officer’s employment history.

3. POST Guidelines on Peace Officer Background Investigations

The Commission on Peace Officer Standards and Training (POST) publishes a manual that contains guidelines for the investigator conducting the background check on peace officers. That publication is the POST Background Investigation Manual: Guidelines for the Investigator and can be found at http://lib.post.ca.gov/Publications/bi.pdf

The Background Investigation Manual identifies two goals of the pre-employment background investigation:

- Assuring compliance with all applicable minimum standards for appointment; and
- Screening out candidates who, based on their past history or other relevant information, are found unsuitable for the positions in question.

In its introductory material, the Background Investigation Manual emphasizes that the manner in which a background investigation is conducted can make the difference between hiring an individual who will truly protect and serve versus someone who may cause harm to oneself, the agency, and society. The Manual stresses that the peace officer background investigation must be comprehensive if it is to lead to informed hiring decisions. Past misconduct and other signs of unsuitability must be uncovered so that dangerous or otherwise unfit candidates are screened out. (http://lib.post.ca.gov/Publications/bi.pdf)

The Code of Regulations requires an investigation of a peace officer candidate's employment history for a minimum of the past 10 years (Code of Regulations, Title 11, § 1953, subd. (e)(6).); however, the peace officer Personal History Statement requires candidates to document their entire employment history.

The POST Background Guidelines suggest that employment information inquiries include the following:

Disciplinary actions;
Being fired, released from probation, or asked to resign;
Workplace violence;
Resignation in lieu of termination;
Subject of written complaints or counseling for poor performance;
Subject of discrimination accusations;
Attendance problems;
Unsatisfactory performance reviews;
Misuse of confidential information;
Misuse of sick leave;
Poor performance as a result of drug/alcohol consumption; and
History and status of applications to other law enforcement agencies

The POST Background Guidelines Manual includes a suggested authorization form for employment background investigations of Peace Officers. The suggested form includes authorization for the hiring agency to access information that would be part of an officer’s confidential personnel file, if the officer had previously worked at another law enforcement agency. This bill would expand the role of POST to include housing officer profiles with sustained findings of misconduct that could be accessed by law enforcement agencies conducting pre-employment background checks.

4. Content of the Officer Profile

This bill requires that agencies provide POST with notification that an officer has separated from employment with the agency. The agency then keeps an “officer profile” that includes a factual summary of any sustained complaints of a serious nature. Any information that is provided to POST that was not sustained or unfounded must be removed from the profile.

However, even though the contents of the profile are limited to factual summaries of sustained misconduct agencies may still access an officer’s full personnel record from a prior agency under the provisions of Penal Code, § 832.12 which states:

Each department or agency in this state that employs peace officers shall make a record of any investigations of misconduct involving a peace officer in his or her general personnel file or a separate file designated by the department or agency. A peace officer seeking employment with a department or agency in this state that employs peace officers shall give written permission for the hiring department or agency to view his or her general personnel file and any separate file designated by a department or agency.

Under this provision if a potential employing agency would like to see more than a factual summary they can request the contents of the personnel file from the officer’s former employing agency.

5. Possible Amendment

Under California law, subject to very limited exceptions, police personnel records are confidential and not subject to disclosure. The provisions of this bill require that law enforcement agencies disclose otherwise confidential records to POST for housing and distribution to other agencies. Presumably, as the confidentiality provisions were enacted by Legislative action in the codification of Penal Code, § 832.7, the provisions of this bill would be exempted from the confidentiality provisions of that code. Nevertheless, an amendment that specified “Notwithstanding the provisions of Penal Code, § 832.7” would cut down on the possibility and likelihood of unnecessary litigation involving local law enforcement agencies seeking to comply with the provisions of this bill.

6. Argument in Support

According to Asian Americans Advancing Justice – California:

Advancing Justice - CA, a partnership of Advancing Justice - Asian Law Caucus and Advancing Justice - Los Angeles, advocates for the civil and human rights of Asian American, Native Hawaiian, and Pacific Islander and other underserved communities to promote a fair and equitable society for all. We advocate for transformation of the criminal justice system to reduce the overreliance on our inhumane and ineffective punitive carceral system, and to reinvest these resources in addressing the root causes of crime and criminalization.

Following the tragic death of George Floyd, it was revealed that the alleged perpetrator, an officer of the Minneapolis Police Department, had 18 prior complaints filed against him. In fact, another officer present on the scene that day had six complaints filed with internal affairs, one of which was still open.

In California, a similar environment exists where law enforcement agencies sometimes hire officers with a history of misconduct. In many circumstances, departments may not be aware of an officer’s past misconduct due to the tactic of resigning in lieu of termination. When an officer resigns in lieu of termination, the investigation into their misconduct is usually halted. This allows an officer to move to a different agency without their superiors knowing that they were under investigation at their previous job.

We strongly support AB 1299 because it will reform the way law enforcement agencies make hiring decisions. This bill will require agencies to complete misconduct investigations and inform the Commission on Peace Officer Training and Standards (POST) of their findings. Law enforcement agencies will be able to access this information during pre-employment background checks to ensure that they are hiring the best quality candidates to serve our community.

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SENATE RULES COMMITTEE

Office of Senate Floor Analyses

(916) 651-1520 Fax: (916) 327-4478

AB 1299

THIRD READING

Bill No: AB 1299

Author: Salas (D), et al.

Amended: 9/10/19 in Senate

Vote: 21

PRIOR VOTES NOT RELEVANT

SENATE ENVIRONMENTAL QUALITY COMMITTEE: 5-2, 9/11/19 (Pursuant to Senate Rule 29.10)

AYES: Allen, Bates, Dahle, Hill, Skinner

NOES: Stern, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 74-0, 5/16/19 (Consent) - See last page for vote

SUBJECT: Petroleum refineries: air monitoring systems

SOURCE: Author

DIGEST:

This bill redefines “petroleum refinery” to exclude refineries under 55,000 barrel per day capacities and within 1 mile of communities under 3,000 residents from requirements to establish and maintain a refinery-related community air monitoring system.

ANALYSIS: Existing federal law, the Federal Clean Air Act (FCAA) and its implementing regulations set National Ambient Air Quality Standards (NAAQS) for six criteria pollutants, designate air basins that do not achieve NAAQS as nonattainment, allow only California to set vehicular emissions standards stricter than the federal government, and allow other states to adopt either the federal or California vehicular emissions standards. (42 U.S.C. §7401 et seq.)

Existing state law:

Establishes the Air Resources Board (ARB) as the air pollution control agency in California and requires the ARB, among other things, to control emissions from a wide array of mobile sources and coordinate with local air districts to control emissions from stationary sources in order to implement the FCAA. (Health and Safety Code (HSC) §39500 et seq.)
Provides shared authority over toxic air contaminant emissions between ARB and local air districts. (HSC §39650 et seq.)
Requires, subject to the powers and duties of the ARB, the local air districts to adopt and enforce rules and regulations to achieve and maintain the state and federal ambient air quality standards in all areas affected by emission sources under their jurisdiction, and to enforce all applicable provisions of state and federal law. (HSC §40001)
Requires, under AB 1647 (Muratsuchi, Chapter 589, Statutes of 2017), the owner or operator of all petroleum refineries in California to, on or before January 1, 2020, install, operate, and maintain a fence-line monitoring system in accordance with guidance provided by the appropriate district, as specified.

This bill, for the purposes of refinery-related community air monitoring systems, narrows the definition of “petroleum refinery” to exclude refineries that have capacity of not more than 55,000 barrels per stream day and are within one mile of a community of under 3,000 residents.

Background

Petroleum refineries. Petroleum refineries separate crude oil into a wide array of petroleum products through a series of physical and chemical separation techniques. The refining industry supplies several widely used everyday products including petroleum gas, kerosene, diesel fuel, motor oil, asphalt, and waxes. According to the US Environmental Protection Agency, “Petroleum refineries are a major source of hazardous and toxic air pollutants such as BTEX compounds (benzene, toluene, ethylbenzene, and xylene). They are also a major source of criteria air pollutants: particulate matter (PM), nitrogen oxides (NOx), carbon monoxide (CO), hydrogen sulfide (H2S), and sulfur dioxide (SO2). Refineries also release less toxic hydrocarbons such as natural gas (methane) and other light volatile fuels and oils.”

According to a March 2019 report from the Office of Environmental Health Hazard Assessment (OEHHA), done in collaboration with ARB and the California EPA’s Interagency Refinery Task Force, there were 188 chemicals identified as being emitted from California refineries at various levels. Of those, 18 were designated as candidates for air monitoring: acetaldehyde, ammonia, benzene, 1,3-butadiene, cadmium, diethanolamine, formaldehyde, hydrogen fluoride, hydrogen sulfide, manganese, naphthalene, nickel, nitrogen oxide, polycyclic aromatic hydrocarbons, particulate matter, sulfur dioxide, sulfuric acid, and toluene. OEHHA stated that, “…the release of these chemicals from refineries does not necessarily mean that local communities face substantial exposures or significant health risks. However, it does increase their likelihood of exposure. Air monitoring of these chemicals may inform decisions that could reduce exposures.”

This bill’s supporters maintain that constraints on the exemption in AB 1299 (under 55,000 barrels per day capacity, within 1 mile of a community with under 3,000 residents) will effectively limit the scope of this exemption to a single refinery, Kern Oil & Refining Company (Kern Oil). Due to time constraints, staff has not been able to definitively verify that claim.
Kern Oil and its community. Kern Oil is an independent refinery that has operated for 85 years, headquartered in Bakersfield, California, which produces up to 27,000 barrels of oil per day. Specifically, Kern Oil is located in the Fuller Acres area of Kern County. As of the 2010 census, Fuller Acres had a population of 991, with 77.1 percent identifying as Hispanic or Latino.

Kern Oil provides 100% of the gasoline and 87 percent of the diesel to the southern San Joaquin Valley. The refinery co-processes and blends various biofuels in with their fossil fuel production process in order to reduce the associated carbon footprint. According to Glassdoor.com, Kern Oil’s profits are in the range of $10 to $25 million annually.

Kern Oil is located within the San Joaquin Valley Air Pollution Control District (SJVAPCD), which has not attained NAAQS for ozone and PM2.5 pollutants. According to SJVAPCD’s website, 6 percent of the district’s volatile organic compound emissions (one of the constituent chemicals of ground-level ozone, or smog) come from petroleum production and marketing.

Comments

Purpose of Bill. According to the author, “The very large refineries targeted by AB 1647 process between 85,000 and 269,000 barrels of oil per day, as much as ten times the amount processed by Kern Oil & Refining Co. (Kern Oil), which processes 25,000 barrels per day. The South Coast Air Quality Management District has adopted rules to implement AB 1647 which exempt any refinery which processes less than 40,000 barrels of oil a day. The narrowly-crafted exemption language will apply only to a small refinery (as currently defined) that also operates in an area with very low population density such as Kern Oil.”
A balancing act. The proponents of this bill have estimated that the upfront costs to establish the systems required under AB 1647 would cost at least $2.6 million, which they claim is untenable for a refinery of their size. Given that South Coast Air Quality Management District, in their Rule 1180 to implement AB 1647 requirements, has exempted refineries with maximum capacities under 40,000 barrels per day, Kern Oil’s capacity would exempt them under that air district’s rules. Opponents of the bill posit that just because the Fuller Acres community is small, its residents should still be granted the same protections and information about nearby air pollution as others receive.

In regards to timing, the monitoring systems required under AB 1647 will need to be effective as of January 1, 2020. In order to fulfil these requirements, Kern Oil will need SJVAPCD to establish regulations, which the district has not yet created. Given the absence of implementing regulations, all SJVAPCD oil refineries, including Kern Oil, would be expected to not be in compliance with AB 1647 upon January 1, 2020.

Despite the timing issues for SJVAPCD refineries to achieve AB 1647 compliance, the authors of AB 1299 are not seeking relief by way of an extension; they are seeking a wholesale exemption for Kern Oil from refinery-related community air monitoring requirements.

The question to be considered is whether the relative value of ensuring the fullest air pollution monitoring measures for communities surrounding Kern Oil justifies the financial impact on Kern Oil of establishing the required systems.

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

SUPPORT: (Verified 9/12/19)

California Chamber of Commerce

Karen Goh, Mayor of Bakersfield
Kern Oil & Refining Company
Leticia Perez, Supervisor, 5th District, County of Kern

Zack Scrivner, Supervisor, 2nd District, County of Kern

OPPOSITION: (Verified 9/12/19)

Alliance of Nurses for Healthy Environments

American Lung Association

Audubon California

California Air Pollution Control Officers Association

California Environmental Justice Alliance

California League of Conservation Voters

Center for Biological Diversity

Center for Race, Poverty, and the Environment

Central California Environmental Justice Network

Central Valley Air Quality Coalition

Climate Hawks Vote

Coalition for Clean Air

Communities for a Better Environment

Community Water Center

Earthjustice

Greenpeace

Leadership Council for Justice & Accountability

Mothers Out Front

Natural Resources Defense Council

Sierra Club California

Voices in Solidarity Against Oil in Neighborhoods

ARGUMENTS IN SUPPORT: According to Kern Oil & Refining Company, “California’s large refineries process between 85,000 and 269,000 barrels per day. Kern’s small production volume using lower hazard processes means the overall risk of emissions is magnitudes lower than the big refineries. Kern’s refinery operations are in a sparsely populated, rural area of Kern County, as opposed to the densely populated, urban centers of its larger counterparts. The monitoring system contemplated in the legislation does not make sense for a facility of the size and emission profile of Kern, which nonetheless already complies with daily and monthly requirements imposed by its local Air Pollution Control District.”

ARGUMENTS IN OPPOSITION: According to a coalition of opposed groups, “This bill would weaken current refinery monitoring requirements for small refineries in rural communities… Monitoring systems are important preventative and informational measures that help ensure public health and safety. Rural communities are entitled to the same protections as urban communities.”

Prepared by: Eric Walters / E.Q. / (916) 651-4108

9/12/19 14:43:55

**** END ****

SENATE COMMITTEE ON ENVIRONMENTAL QUALITY

Senator Allen, Chair

2019 - 2020 Regular

Bill No: AB 1299

Author:	Salas
Version:	9/10/2019	Hearing Date:	9/11/2019
Urgency:	No	Fiscal:	Yes
Consultant:	Eric Walters

SUBJECT: Petroleum refineries: air monitoring systems.

DIGEST: This bill would redefine “petroleum refinery” to exclude refineries under 55,000 barrel per day capacities and within 1 mile of communities under 3,000 residents from requirements to establish and maintain a refinery-related community air monitoring system.

ANALYSIS:

Existing federal law:

The Federal Clean Air Act (FCAA) and its implementing regulations set National Ambient Air Quality Standards (NAAQS) for six criteria pollutants, designate air basins that do not achieve NAAQS as nonattainment, allow only California to set vehicular emissions standards stricter than the federal government, and allow other states to adopt either the federal or California vehicular emissions standards. (42 U.S.C. §7401 et seq.)

Existing state law:

Establishes the Air Resources Board (ARB) as the air pollution control agency in California and requires the ARB, among other things, to control emissions from a wide array of mobile sources and coordinate with local air districts to control emissions from stationary sources in order to implement the FCAA. (Health and Safety Code (HSC) §39500 et seq.)
Provides shared authority over toxic air contaminant emissions between ARB and local air districts. (HSC §39650 et seq.)
Requires, subject to the powers and duties of the ARB, the local air districts to adopt and enforce rules and regulations to achieve and maintain the state and federal ambient air quality standards in all areas affected by emission sources under their jurisdiction, and to enforce all applicable provisions of state and federal law. (HSC §40001)
Requires each local air district to appoint an Air Pollution Control Officer (APCO) with specified duties and responsibilities. (HSC §40750 et seq.)
Authorizes an APCO, at any time, to require from an applicant for, or the holder of, any permit information, analyses, plans, or specifications that will disclose the nature, extent, quantity, or degree of air contaminants which are, or may be, discharged under the permit. (HSC §42303)
Requires, under AB 1647 (Muratsuchi, Chapter 589, Statutes of 2017), the owner or operator of all petroleum refineries in California to, on or before January 1, 2020, install, operate, and maintain a fence-line monitoring system in accordance with guidance provided by the appropriate district, as specified.

Background

Petroleum refineries. Petroleum refineries separate crude oil into a wide array of petroleum products through a series of physical and chemical separation techniques. The refining industry supplies several widely used everyday products including petroleum gas, kerosene, diesel fuel, motor oil, asphalt, and waxes. According to the US Environmental Protection Agency, “Petroleum refineries are a major source of hazardous and toxic air pollutants such as BTEX compounds (benzene, toluene, ethylbenzene, and xylene). They are also a major source of criteria air pollutants: particulate matter (PM), nitrogen oxides (NOx), carbon monoxide (CO), hydrogen sulfide (H2S), and sulfur dioxide (SO2). Refineries also release less toxic hydrocarbons such as natural gas (methane) and other light volatile fuels and oils.”

According to a March 2019 report from the Office of Environmental Health Hazard Assessment (OEHHA), done in collaboration with ARB and the California EPA’s Interagency Refinery Task Force, there were 188 chemicals identified as being emitted from California refineries at various levels. Of those, 18 were designated as candidates for air monitoring: acetaldehyde, ammonia, benzene, 1,3-butadiene, cadmium, diethanolamine, formaldehyde, hydrogen fluoride, hydrogen sulfide, manganese, naphthalene, nickel, nitrogen oxide, polycyclic aromatic hydrocarbons, particulate matter, sulfur dioxide, sulfuric acid, and toluene. OEHHA stated that, “…the release of these chemicals from refineries does not necessarily mean that local communities face substantial exposures or significant health risks. However, it does increase their likelihood of exposure. Air monitoring of these chemicals may inform decisions that could reduce exposures.”

The bill’s supporters maintain that constraints on the exemption in AB 1299 (under 55,000 barrels per day capacity, within 1 mile of a community with under 3,000 residents) will effectively limit the scope of this exemption to a single refinery, Kern Oil & Refining Company (Kern Oil). Due to time constraints, staff has not been able to definitively verify that claim.
Kern Oil and its community. Kern Oil is an independent refinery that has operated for 85 years, headquartered in Bakersfield, California, which produces up to 27,000 barrels of oil per day. Specifically, Kern Oil is located in the Fuller Acres area of Kern County. As of the 2010 census, Fuller Acres had a population of 991, with 77.1% identifying as Hispanic or Latino.

Kern Oil provides 100% of the gasoline and 87% of the diesel to the southern San Joaquin Valley. The refinery co-processes and blends various biofuels in with their fossil fuel production process in order to reduce the associated carbon footprint. According to Glassdoor.com, Kern Oil’s profits are in the range of $10 to $25 million annually.

Kern Oil is located within the San Joaquin Valley Air Pollution Control District (SJVAPCD), which has not attained NAAQS for ozone and PM2.5 pollutants. According to SJVAPCD’s website, 6% of the district’s volatile organic compound emissions (one of the constituent chemicals of ground-level ozone, or smog) come from petroleum production and marketing.

Comments

Purpose of Bill. According to the author, “The very large refineries targeted by AB 1647 process between 85,000 and 269,000 barrels of oil per day, as much as ten times the amount processed by Kern Oil & Refining Co. (Kern Oil), which processes 25,000 barrels per day. The South Coast Air Quality Management District has adopted rules to implement AB 1647 which exempt any refinery which processes less than 40,000 barrels of oil a day. The narrowly-crafted exemption language will apply only to a small refinery (as currently defined) that also operates in an area with very low population density such as Kern Oil.”
A balancing act. The proponents of this bill have estimated that the upfront costs to establish the systems required under AB 1647 would cost at least $2.6 million, which they claim is untenable for a refinery of their size. Given that South Coast Air Quality Management District, in their Rule 1180 to implement AB 1647 requirements, has exempted refineries with maximum capacities under 40,000 barrels per day, Kern Oil’s capacity would exempt them under that air district’s rules. Opponents of the bill posit that just because the Fuller Acres community is small, its residents should still be granted the same protections and information about nearby air pollution as others receive.

In regards to timing, the monitoring systems required under AB 1647 will need to be effective as of January 1, 2020. In order to fulfil these requirements, Kern Oil will need SJVAPCD to establish regulations, which the district has not yet created. Given the absence of implementing regulations, all SJVAPCD oil refineries, including Kern Oil, would be expected to not be in compliance with AB 1647 upon January 1, 2020.

Despite the timing issues for SJVAPCD refineries to achieve AB 1647 compliance, the authors of AB 1299 are not seeking relief by way of an extension; they are seeking a wholesale exemption for Kern Oil from refinery-related community air monitoring requirements.

The question before the committee is whether the relative value of ensuring the fullest air pollution protection measures for communities surrounding Kern Oil justifies the financial impact on Kern Oil of establishing the required monitoring systems.

SOURCE:

Author

SUPPORT:

Karen Goh, Mayor of Bakersfield

Kern Oil & Refining Company

Leticia Perez, Supervisor, 5^th District, County of Kern

OPPOSITION:

Alliance of Nurses for Healthy Environments

American Lung Association

Audubon California

California Environmental Justice Alliance

California League of Conservation Voters

Center for Biological Diversity

Center for Race, Poverty, and the Environment

Central California Environmental Justice Network

Central Valley Air Quality Coalition

Climate Hawks Vote

Coalition for Clean Air

Communities for a Better Environment

Community Water Center

Earthjustice

Greenpeace

Leadership Council for Justice & Accountability

Mothers Out Front

Natural Resources Defense Council

Sierra Club California

Voices in Solidarity Against Oil in Neighborhoods (VISION)

ARGUMENTS IN SUPPORT:

According to Kern Oil & Refining Company, “California’s large refineries process between 85,000 and 269,000 barrels per day. Kern’s small production volume using lower hazard processes means the overall risk of emissions is magnitudes lower than the big refineries. Kern’s refinery operations are in a sparsely populated, rural area of Kern County, as opposed to the densely populated, urban centers of its larger counterparts. The monitoring system contemplated in the legislation does not make sense for a facility of the size and emission profile of Kern, which nonetheless already complies with daily and monthly requirements imposed by its local Air Pollution Control District.”

ARGUMENTS IN OPPOSITION:

According to a coalition of opposed groups, “This bill would weaken current refinery monitoring requirements for small refineries in rural communities… Monitoring systems are important preventative and informational measures that help ensure public health and safety. Rural communities are entitled to the same protections as urban communities.”

-- END --

SENATE RULES COMMITTEE

Office of Senate Floor Analyses

(916) 651-1520 Fax: (916) 327-4478

AB 1299

THIRD READING

Bill No: AB 1299

Author: Flora (R)

Amended: 7/2/19 in Senate

Vote: 21

SENATE LABOR, PUB. EMP. & RET. COMMITTEE: 5-0, 6/19/19

AYES: Hill, Morrell, Jackson, Mitchell, Pan

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 74-0, 5/16/19 (Consent) - See last page for vote

SUBJECT: Mutual aid: reimbursements: volunteer firefighters

SOURCE: California State Firefighters’ Association

DIGEST:

This bill requires a nonprofit or public fire department that receives federal, state, or local reimbursement for personnel costs associated with firefighting, to pay volunteer firefighters an amount equal to 20% of the annual compensation that would otherwise be required to hire a permanent employee for the same services.

ANALYSIS:

Existing law:

Provides that, during any state of war emergency or state of emergency when the need arises for outside aid in any county, city and county, or city, such aid shall be rendered in accordance with approved emergency plans. (Government Code §8616)
Provides that, in periods other than a state of war emergency, a state of emergency, or a local emergency, state agencies and political subdivisions have authority to exercise mutual aid powers in accordance with the Master Mutual Aid Agreement and local ordinances, resolutions, agreements, or plans. (Government Code §8617)
Specifies, unless otherwise expressly provided by the parties, the responsible local official in whose jurisdiction an incident requiring mutual aid has occurred shall remain in charge at such incident, including the direction of personnel and equipment provided him through mutual aid. (Government Code §8618)
Requires private employers to indemnify their workers for all necessary expenditures or losses incurred by the workers in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer. (Labor Code §2802)

This bill:

Requires a nonprofit or public fire department that receives federal, state, or local reimbursement for personnel costs associated with firefighting to pass through to volunteer firefighters an amount defined by the fire agreement for a specific mutual aid request. This amount excludes normal payroll-related costs for the responding fire department.
Provides that fire departments must prioritize full-time or paid firefighters over volunteer firefighters for mutual aid assignments.
Provides that these reimbursements for volunteer firefighters may be issued in monthly or annual nominal fees, benefits, expenses, or any combination thereof. If the fire department does not issue reimbursement in this way, it must reimburse volunteer firefighters within 45 days of receiving sufficient funds per the fire agreement.
Requires that documentation of amounts passed through to volunteer firefighters must be kept on file for at least three years by the fire department for which the volunteers worked. This documentation must be made available to current and former volunteer firefighters upon request.
Stipulates that a fire department that employs full time firefighters must, for the remainder of the fiscal year, stop using any volunteer firefighter to provide mutual aid response if they have received reimbursements during that fiscal year exceeding the equivalent of 20 percent of the salary of a similar rank of a full-time firefighters from the same department.
Stipulates that, for fire departments that only use volunteer firefighters, the fire departments must cease using the services of any volunteer firefighter to provide mutual aid response who has received pass-through reimbursements, that exceed during the fiscal year 20 percent of a full-time firefighter’s salary as that salary is determined by the Employment Development Department.
Provides that the requirements in this bill may be temporarily waived by the Governor through an executive order proclaiming an emergency.
States that a volunteer firefighter may pursue reimbursement in a civil action if a fire department fails to provide it.

Comments

The Fair Labor Standards Act (FLSA), Volunteers, and AB 1299. In 1985, Congress amended the FLSA to both ensure that firefighters who were moved to volunteer would not be impeded due to wage and hour violations and also prevent any manipulation or avoidance on the part of the employer to skirt minimum wage or overtime requirements. To achieve this balance, the FLSA permits public employees to volunteer for firefighting activities if:

They provide their services for civic, charitable, or humanitarian reasons without promise, expectation, or receipt of compensation for the services rendered, although a volunteer can be paid expenses, reasonable benefits, or a nominal fee to perform such services; (emphasis added)
They offer their services freely and without coercion, direct or implied, from the employer; and
They are not otherwise employed by the same public agency to perform the same services as those for which they propose to volunteer; in other words, individuals can qualify as volunteers if they either volunteer for different agencies or perform services different from those they are otherwise employed to perform.

Despite the creation of the above definition, Congress declined to delineate what would be a “nominal fee.” Left to the federal Department of Labor (DOL), this definition was hammered out through regulations and opinion letters as the “20 percent rule.”

As stated in a 2008 DOL opinion letter:

A willingness to volunteer for 20 percent of the prevailing wage for the job is also a likely indication of the spirit of volunteerism contemplated by the 1985 amendments to the FLSA. We believe this interpretation of “nominal fee” applies equally in the context of firefighters.

In California, the federal firefighter volunteer provisions frequently become relevant when a natural disaster strikes, requiring local governments to ask for assistance through the State mutual aid agreement. A mutual aid agreement is an agreement in which two or more parties agree to furnish resources and facilities and to render services to each other party of the agreement to prevent and combat any type of disaster or emergency.

AB 1299 sets a work threshold amount of 20 percent of what it would take to hire a full-time employee. When volunteers have provided services equivalent to receiving this amount of reimbursement, AB 1299 prohibits public entities from using the volunteers for mutual aid response for the remainder of the fiscal year. This prohibition applies whether or not a disaster or emergency is ongoing or occurs after a volunteer firefighter has reached this reimbursement ceiling.

Related/Prior Legislation

AB 1283 (Rodriguez) of 2018 was identical to this bill. The bill died on the Senate Inactive File.

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

SUPPORT: (Verified 7/8/19)

California State Firefighters’ Association (source)

California Fire Chiefs Association

OPPOSITION: (Verified 7/8/19)

None received

ARGUMENTS IN SUPPORT: The California State Firefighters’ Association, the sponsors of the measure, argue the following:

“Volunteer firefighters serve as the backbone of the California Mutual Aid System, a system that is largely agreed to be the best in the world. They are involved in their local communities but are also the crucial resources needed in responding to incidents through mutual aid agreements in areas that are not their own. In recent large scale incidents, the federal and state governments provide a reimbursement to those fire departments who participate. These reimbursement monies are meant to be passed through to the volunteers through previously agreed upon contracts. Unfortunately, too many fire departments do not pass through the reimbursements to the volunteer firefighters.

The California Labor Commissioner regulates the terms and conditions of employment, including wages. Existing law prohibits an employer from discharging, or in any manner discriminating against, an employee for taking time off to perform emergency duty as a volunteer firefighter. It is also a misdemeanor to willfully refuse to pay wages due or to falsely deny an amount or validity of an amount owed.

This bill would require a fire department with volunteer firefighters that receives reimbursement for personnel costs associated with firefighting in which its volunteer firefighters have participated to pass through to those volunteers the money they are due.”

ASSEMBLY FLOOR: 74-0, 5/16/19

AYES: Aguiar-Curry, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooper, Cunningham, Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Gabriel, Gallagher, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Voepel, Waldron, Weber, Wicks, Wood, Rendon

NO VOTE RECORDED: Arambula, Burke, Cooley, Friedman, Cristina Garcia, Ting

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

7/10/19 14:47:13

**** END ****

SENATE COMMITTEE ON LABOR, PUBLIC EMPLOYMENT AND RETIREMENT

Senator Jerry Hill, Chair

2019 - 2020 Regular

Bill No: AB 1299 Hearing Date: June 19, 2019

Author:	Flora
Version:	March 21, 2019
Urgency:	No	Fiscal:	Yes
Consultant:	Gideon L. Baum

SUBJECT: Mutual aid: reimbursements: volunteer firefighters

KEY ISSUE

Should the Legislature require a nonprofit or public fire department that receives federal, state, or local reimbursement for personnel costs associated with firefighting, to pay volunteer firefighters an amount equal to 20% of the annual compensation that would otherwise be required to hire a permanent employee for the same services?

ANALYSIS

Existing law:

Provides that, during any state of war emergency or state of emergency when the need arises for outside aid in any county, city and county, or city, such aid shall be rendered in accordance with approved emergency plans. (Government Code §8616)
Provides that, in periods other than a state of war emergency, a state of emergency, or a local emergency, state agencies and political subdivisions have authority to exercise mutual aid powers in accordance with the Master Mutual Aid Agreement and local ordinances, resolutions, agreements, or plans. (Government Code §8617)
Unless otherwise expressly provided by the parties, the responsible local official in whose jurisdiction an incident requiring mutual aid has occurred shall remain in charge at such incident, including the direction of personnel and equipment provided him through mutual aid. (Government Code §8618)
Requires private employers to indemnify their workers for all necessary expenditures or losses incurred by the workers in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer. (Labor Code §2802)

This bill:

Requires a nonprofit or public fire department that receives federal, state, or local reimbursement for personnel costs associated with firefighting to pass through to volunteer firefighters an amount defined by the fire agreement for a specific mutual aid request. This amount excludes normal payroll-related costs for the responding fire department.
Provides that these reimbursements for volunteer firefighters may be issued in monthly or annual nominal fees, benefits, expenses, or any combination thereof. If the fire department does not issue reimbursement in this way, it must reimburse volunteer firefighters within 45 days of receiving sufficient funds per the fire agreement.
Requires that documentation of amounts passed through to volunteer firefighters must be kept on file for at least three years by the fire department for which the volunteers worked. This documentation must be made available to current and former volunteer firefighters upon request.
Stipulates that a fire department must, for the remainder of the fiscal year, stop using any volunteer firefighter to provide mutual aid response if they have received reimbursements during that fiscal year exceeding the equivalent of 20 percent of the statewide average amount that would be required to hire a permanent employee to provide those same services.
States that a volunteer firefighter may pursue reimbursement in a civil action if a fire department fails to provide it.

COMMENTS

1. The Fair Labor Standards Act (FLSA), Volunteers, and AB 1299:

In 1985, Congress amended the Fair Labor Standards Act (FLSA) in 1985 to both ensure that firefighters who were moved to volunteer would not be impeded due to wage and hour violations and also prevent any manipulation or avoidance on the part of the employer to skirt minimum wage or overtime requirements. To achieve this balance, the FLSA permits public employees to volunteer for firefighting activities if:

They provide their services for civic, charitable, or humanitarian reasons without promise, expectation, or receipt of compensation for the services rendered, although a volunteer can be paid expenses, reasonable benefits, or a nominal fee to perform such services; (emphasis added)
They offer their services freely and without coercion, direct or implied, from the employer; and
They are not otherwise employed by the same public agency to perform the same services as those for which they propose to volunteer; in other words, individuals can qualify as volunteers if they either volunteer for different agencies or perform services different from those they are otherwise employed to perform.

Despite the creation of the above definition, Congress declined to delineate what would be a “nominal fee”. Left to the federal Department of Labor, this definition was hammered out through regulations and opinion letters as the “20 percent rule”.

As stated in a 2008 DOL opinion letter:

AB 1299 sets a work threshold amount of 20 percent of what it would take to hire a full-time employee. When volunteers have provided services equivalent to receiving this amount of reimbursement, AB 1299 prohibits public entities from using the volunteers for mutual aid response for the remainder of the fiscal year. This prohibition applies whether or not a disaster or emergency is ongoing or occurs after a volunteer firefighter has reached this reimbursement ceiling.

2. Proponent Arguments:

The California State Firefighters Association, the sponsors of the measure, argue the following:

3. Opponent Arguments:

None on file.

4. Prior Legislation:

AB 1283 (Rodriguez) of 2018 was identical to this bill. The measure died on the Senate Inactive File.

SUPPORT

California State Firefighters’ Association (Sponsor)

California Fire Chiefs Association

OPPOSITION

None received.

-- END --

Date of Hearing: May 8, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 1299

Author:(Flora) – As Amended Ver:March 21, 2019

Policy Committee:	Labor and Employment	Vote:	7 - 0

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

SUMMARY:

This bill requires a nonprofit or public fire department that receives federal reimbursement for personnel costs associated with firefighting to pass through reimbursements to volunteer firefighters, if there are any. The fire department must maintain documentation of reimbursements for at least three years and must cease using volunteer firefighters to provide mutual aid response if reimbursement exceeds an amount equal to 20% of the statewide average compensation that would otherwise be required to hire a permanent employee for the same services.

FISCAL EFFECT:

Unknown, but likely minor, reimbursable mandate costs for fire departments to maintain records of reimbursements. The vast majority of fire departments already maintain such records. Actual costs would depend upon a determination by the Commission on State Mandates and the number and amount of individual claims the Commission deems reimbursable.
Possible statewide cost pressures for the California Office of Emergency Services (Cal OES) to the extent it prevents some volunteer firefighters from engaging in mutual aid response because of being over-reimbursed. However, as a practical matter it is unlikely this will occur.

COMMENTS:

Purpose. According to the bill’s sponsor, the California State Firefighters’ Association (CSFA), AB 1299 will help ensure volunteer firefighters receive reimbursement money that they are owed.

Under current US Department of Labor (DOL) guidance, a volunteer firefighter is considered a volunteer as long as reimbursements and fees paid to that volunteer do not exceed 20% of the amount otherwise would be required to hire a permanent employee for the same services. However, according to the author, in recent fire events, the federal government provided a reimbursement to participating fire departments, but some departments did not pass through money to firefighters.

Staff comments. AB 1299 is similar to AB 1283 (Rodriguez), of the 2017-18 Legislative Session, which died on the Senate Floor. While this bill is unlikely to generate significant reimbursable costs for local fire departments, there remain some key policy questions.

First, this bill’s main enforcement mechanism is the prospect of civil action from the volunteer firefighter. However, this bill provides no enforcement mechanism when a volunteer firefighter is overpaid or when the fire department fails to keep adequate records.

Second, the 20% threshold, while based on federal guidance, seems arbitrary and subject to manipulation given the many types of reimbursements possible through a mutual aid agreement. It is unclear which entity will be responsible for calculating and establishing the threshold.

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

Date of Hearing: April 24, 2019

ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT

Ash Kalra, Chair

ABPCA Bill Id:AB 1299 (

Author:Flora) – As Amended Ver:March 21, 2019

SUBJECT: Mutual aid: reimbursements: volunteer firefighters

SUMMARY: Requires a nonprofit or public fire department that receives federal, state, or local reimbursement for firefighting personnel costs to pass through to volunteer firefighters an amount defined by the fire agreement for a specific mutual aid request, provided the reimbursement made during that fiscal year does not exceed 20 percent of the amount required to hire a permanent employee to provide the same services. Specifically, this bill:

Requires a nonprofit or public fire department that receives federal, state, or local reimbursement for personnel costs associated with firefighting to pass through to volunteer firefighters an amount defined by the fire agreement for a specific mutual aid request. This amount excludes normal payroll-related costs for the responding fire department.
Provides that these reimbursements for volunteer firefighters may be issued in monthly or annual nominal fees, benefits, expenses, or any combination thereof. If the fire department does not issue reimbursement in this way, it must reimburse volunteer firefighters within 45 days of receiving sufficient funds per the fire agreement.
Requires that documentation of amounts passed through to volunteer firefighters must be kept on file for at least three years by the fire department for which the volunteers worked. This documentation must be made available to current and former volunteer firefighters upon request.
Stipulates that a fire department must, for the remainder of the fiscal year, stop using any volunteer firefighter to provide mutual aid response if they have received reimbursements during that fiscal year exceeding the equivalent of 20 percent of the statewide average amount that would be required to hire a permanent employee to provide those same services.
States that a volunteer firefighter may pursue reimbursement in a civil action if a fire department fails to provide it.

EXISTING LAW:

Authorizes the Governor to coordinate the State Emergency Plan and the programs necessary to address an emergency in the state, and to manage related plans and programs of the political subdivisions of the state in order to incorporate them into the State Emergency Plan, the emergency plans and programs of the federal government, and those of other states.
Defines a “mutual aid region” as a subdivision of the state emergency services organization that coordinates mutual aid and other emergency operations within an area of the state.
Further defines “emergency plans” as official approved documents which describe the principles and methods for carrying out emergency operations or rendering mutual aid during emergencies. These plans include the emergency services of governmental agencies, mobilization of resources, and mutual aid.
Charges the Office of Emergency Services, along with relevant local and state agencies, to develop a state fire service and rescue emergency mutual aid plan that, among other things:
- 1. Mobilizes, organizes, and operates the necessary fire, rescue, and hazardous material resources of the state to relieve the effects of disasters.
  2. Manages the response of available fire, rescue, and hazardous materials resources on a local, area, regional, and statewide basis.
  3. Establishes guidelines for recruiting and training auxiliary personnel to supplement fire, rescue, and hazardous materials personnel during disaster operations.

FISCAL EFFECT: Unknown

COMMENTS: According to the author, “Volunteer firefighters serve as the backbone of the mutual aid system in California and are a valuable resource in fighting wildfires. These volunteer firefighters oftentimes have to leave their families, careers and other obligations to perform these civil services outside their own areas. It is because of this service, these volunteers miss out on earning higher wages in their everyday jobs.

Additionally, in certain parts of the state, fire departments are completely volunteer-driven. In recent large scale incidents, such as the Lake County and the Camp fires, federal and state government provided reimbursements to fire departments who participated in mutual aid agreements in order to pay volunteer firefighters. These reimbursement monies are intended to be given to the volunteers through previously agreed upon mutual aid and fire agreements.

Unfortunately, many fire departments do not disperse these reimbursements to volunteer firefighters. In certain cases, Fire Department Chiefs have guilted volunteers to donating their reimbursements to fund various investments. When compensation is not properly dispersed to volunteers, they may be discouraged from participating in volunteer programs, ultimately compromising public safety.”

The California State Firefighters’ Association, sponsor of the bill, explains that AB 1299 will “ensure that volunteer firefighters are reimbursed the pay they are due after leaving their home districts and departments and provid[ing] emergency services through the mutual aid and fire assistance agreements that are contractually bound and paid for by either the Federal and State governments.”

No known opposition on file.

The Application of the Fair Labor Standards Act (FLSA) to Volunteer Firefighters

The FLSA, enacted in 1938, establishes minimum wage, overtime pay, recordkeeping, and child labor standards affecting workers in the private sector and in Federal, State, and local governments. In enacting amendments to the act in 1985, Congress sought to ensure that true volunteer activities undertaken for civic, charitable, or humanitarian purposes were neither impeded nor discouraged.

Yet, Congress also wished to prevent any manipulation or abuse of minimum wage or overtime requirements through coercion or undue pressure upon individuals to “volunteer” their services.

To ensure this, the FLSA excludes from the definition of employee any individual, who volunteers to perform services for a public agency, which is a State, a political subdivision of a State, or an interstate governmental agency, if:

The individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered; and
Such services are not the same type of services, which the individual is employed to perform for such public agency.

Also, an employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency may volunteer to perform services for any other State, political subdivision, or interstate governmental agency, including a State, political subdivision or agency with which the employing State, political subdivision, or agency has a mutual aid agreement.

In a 2008 guidance letter about a fire protection district’s plan to provide stipends to volunteer firefighters, the U.S. Department of Labor (USDOL) advised that a public agency volunteer cannot receive any compensation, but may be paid expenses, reasonable benefits, or a nominal fee, or any combination thereof. USDOL stated that the regulations allow for volunteer firefighters to be paid a nominal fee even if paid on a “per call” or similar basis, as long as such payment is consistent with certain factors denoting the relative “sacrifice” of the volunteer. Among the factors to be considered in determining this: the distance traveled and time and effort expended by the volunteer; whether the volunteer has agreed to be available around-the-clock; and whether the volunteer provides services throughout the year, even if those services are provided periodically. Public agencies should similarly be permitted to pay non-firefighters a nominal fee on a “per call” basis, provided that the amount is, in fact, a nominal fee.

USDOL continued, “Determining whether a specific amount of expenses, benefits, or fees prevents an individual from qualifying as a volunteer under the FLSA requirements an examination of the total amount of payments made . . . in the context of the economic realities of the particular situation.” 29 C.F.R. Section 553.106(f). As a general rule, the Department finds that a fee paid is (apart from expenses) nominal as long as it does not exceed 20 percent of the amount that otherwise would be required to hire a permanent employee for the same services. This is commonly referred to as the “20 percent test.” See Wage and Hour Opinion Letter FLSA2006-28 (Aug. 7, 2006) and Wage and Hour Opinion Letter FLSA2005-51 (“[A] willingness to volunteer for an activity for 20 percent of the prevailing wage for the job is a likely indicium of the spirit of volunteerism contemplated by the 1985 amendments to the FLSA”).

Prior Legislation

AB 1283 (Rodriguez) of 2018 was identical to this bill. The measure died on the Senate Inactive File.

REGISTERED SUPPORT / OPPOSITION:

Support

California State Firefighters' Association (sponsor)

Opposition

None on file.

Analysis Prepared by: Megan Lane / L. & E. /

AB 1299: Peace officers: employment.

GOVERNOR'S VETO

GV Bill Id:AB 1299

SUMMARY:

The Senate Amendments:

Requires any law enforcement agency that employs specified peace officers to notify POST within 10 days after a peace officer employed by that agency is terminated, or resigns or retires with a pending complaint, charge, or investigation of a serious nature.

States that if a peace officer resigns or retires with a pending complaint, charge, or investigation of a serious nature, the employing agency shall do all of the following:

Specify in the notification to POST that the officer has resigned or retired with a pending complaint, charge, or investigation;

Specify in the notification the specific nature of the complaint, charge, or investigation, including a brief summary of allegations;

Complete the investigation in a thorough and unbiased manner;

Complete the investigation within one year after the date the conduct was discovered, unless a reasonable extension is needed for any reason, as specified;

Within 10 days after completion of the investigation, report to POST on whether each charge of a serious nature was sustained, not sustained, unfounded , or exonerated, and

In the event of a sustained complaint of a serious nature, include a summary of facts in the report to POST.

States that if an agency reports to POST that an investigation resulted in a finding that a charge is not sustained, unfounded, or exonerated POST shall remove any reference to the charge, complaint, or investigation from the person's profile.

Provides that if a court finds that a sustained finding of a serious nature was unfounded or not sustained, upon request of the law enforcement officer, POST shall remove any reference to the charge, complaint, or investigation from the peace officer's profile.

Governor's Veto Message:

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According to the Author:

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Arguments in Opposition:

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UPDATED:

(Without Reference to File)

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1299

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THIRD READING

Bill No: AB 1299

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Bill No: AB 1299

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Related Legislation:

SENATE COMMITTEE ON PUBLIC SAFETY

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ABPCA Bill Id:AB 1299

ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT

ABPCA Bill Id:AB 1299 (