SENATE THIRD READING

STR Bill Id:SB 731

Author:(Bradford)

As Amended Ver:August 25, 2020

Majority vote

SUMMARY:

Makes several changes relating to police officer decertification and liability for civil rights violations.

Major Provisions

1. Provides, for purposes of the Tom Bane Civil Rights Act, that a threat, intimidation, or coercion need not be separate and independent from, and may be inherent in, any interference or attempted interference with a right. Specifies that a person bringing suit under the Bane Act need not prove that a person being sued under the Act had specific intent to interfere or attempt to interfere with a right secured by the Constitution or law.
2. Provides that a cause of action under the Tom Bane Civil Rights Act for the death of a person may be asserted by a family member, to the same degree of relationship as described in the existing wrongful death statute.
3. Provides that, with the exception of judicial and prosecutorial immunity for individual attorneys acting on behalf of a prosecutor's office in a prosecutorial capacity, certain state immunity provisions provided in the Government Claims Act shall not apply to any cause of action brought under the Tom Bane Civil Rights Act against a peace officer or the department or agency employing the peace officer.
4. Disqualifies a person who has been convicted of certain crimes against public justice, including falsification of records, bribery, or perjury, from obtaining employment as a peace officer. Provides further than any person who has been certified as a police officer and who has surrendered that certification, or has had that certification revoked, is prohibited from obtaining employment as a peace officer.
5. Grants the existing Commission on Peace Officer Standards and Training (Commission) the power to investigate and determine the fitness of any person to serve as a peace officer in the state and directs the Commission to issue or deny certification, as specified.
6. Creates the Peace Officer Standards Accountability Division (Division) within the Commission to investigate and prosecute proceedings against the peace officer's certification, and requires the Division to review and investigate grounds for decertification and make findings as to whether grounds for action against an officer's certification exists, and to notify the officer of its findings, as specified.
7. Creates the nine-member Peace Officer Standards Accountability Advisory Board (Board) and requires it to hold public meetings to review investigative findings and to make recommendations to the Commission. Requires the Commission to adopt the recommendations of the Board if it is supported by clear and convincing evidence and, if action is to be taken against an officer's certification, return the determination to the Division to commence administrative proceedings and to notify relevant officials, as specified.
8. Makes all records related to the revocation of a police officer's certification a public record and requires that investigation records be retained for 30 years.
9. Requires any agency employing peace officers to report to the Commission the employment, appointment, or separation from employment of a peace officer, any complaint, charge, allegation, or investigation into the conduct of a peace officer that could render the officer subject to revocation, findings by civil oversight entities, and civil judgments that could affect the officer's certification.
10. Requires, in case of separation from employment or appointment, each agency to execute an affidavit-of-separation form adopted by the Commission describing the reason for separation, and specifies that the affidavit-of-separation be signed under penalty of perjury.
11. Requires the Board to report annually on the activities of the Division, Board, and Commission, relating to the certification program, including the number of applications for certification, the events reported, the number of investigations conducted, and the number of certificates surrendered or revoked.

COMMENTS:

This bill seeks to increase peace officer accountability and provide a means of decertifying police officers who engage in serious misconduct. For purposes of this analysis, the provisions of this bill can be divided into two parts: First, the bill makes three changes to the Bane Civil Rights Act in order to do the following: 1) clarify that threats, intimidation, and coercion may constitute an inherent interference with a right for purposes of the Act, without need of showing of specific intent to interfere with those rights; 2) declare that the immunity usually enjoyed by public entities and public employees under certain provisions of the Government Claims Act does not apply to actions brought under the Bane Act; and 3) allow a family member to bring an action on behalf of a person who died as a result of a violation of the Act. Second, the bill grants new powers to the Commission on Peace Officer Standards and Training, most notably by giving the Commission the power to investigate and determine peace officer fitness and to decertify officers who engage in serious misconduct. Under existing law, the Commission merely develops standards and training requirements, identifies factors that disqualify a person from becoming a peace officer in the first instance, and issues different levels of certification to peace officers. While the existing Commission may cancel a certification that was issued in error or was a result of fraud or misrepresentation, it is prohibited from ever cancelling a properly-issued certification. California is apparently only one of a few states that does not provide for decertification.

Bane Act and Existing Case Law. The Bane Act authorizes a cause of action against a person who, whether or not acting under color of law, uses threats, intimidation, or coercion to interfere with the ability of another person in the exercise and enjoyment of any rights guaranteed under the U.S. or California constitutions, or any right guaranteed under federal or state statute. The action may be brought by the Attorney General or public prosecutor, or it may be brought by the person whose rights were violated. Some courts have read this provision more restrictively, as essentially imposing two requirements: 1) that there must a threat, intimidation, or coercion and 2) that the threat, intimidation, or coercion must be done with the intent to interfere with the other person's rights. In other words, some courts have held that the threat, intimidation, or coercion must be independent of the intent to interfere with the right. (See e.g. Cornell v. City and County of San Francisco (2017) 17 Cal.App.5th 766; Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947.) However, other courts have suggested that threats, intimidation, or coercion that interfere with the exercise of a right are an inherent violation of the Bane Act, and that one does not need to show a separate and independent intent to interfere with a legal right. In other words, it is sufficient that the threat, intimidation, or coercion interfered with the exercise or enjoyment of the right, or, conversely, that coercion is inherent with any purposeful interference of a right. (See e.g. M.H. v. County of Alameda (2013) 90 F. Supp. 3d 889.) This bill resolves these conflicting interpretations in favor of the latter decisions, and in a manner that seems more reasonably related to the intent of Bane Act – to prohibit threats, intimidation, and coercion that interfere with the exercise and enjoyment of legal rights.

Existing case law has also held that actions under the Bane Act may only be brought by and on behalf of the person whose rights were interfered with. Consequently, some courts have dismissed actions brought by family members on behalf of a person who died as a result of the Bane Act violation. (See e.g. Boccato v City of Hermosa Beach (1994) 29 Cal. App. 4^th 1797; BART v. Superior Court (1995) 38 Cal. App. 4th 141.)

No Government Immunity for Bane Act Violations. California's Government Claims Act provides that public entities and public employees are generally immune from liability for harms that they might cause while carrying out their duties, unless another statute expressly provides for liability. Although many statutes do indeed create liability for government actors in certain situations, as a general rule public entities and public employees enjoy at least qualified immunity in most instances. Three provisions of the Government Claims Act are especially germane to this bill. Government Code Section 821.6 grants absolute immunity to public employees for any injury caused by their instituting or prosecuting any judicial or administrative proceeding within the scope of their employment, even if they act maliciously and without probable cause. This provision conceivably protects a peace officer from liability on the grounds that the officer was prosecuting an administrative duty within the scope of employment. Government Code Sections 844.6, and 845.6 generally grant qualified immunity to public employees for injuries caused to a prisoner, or for failure to provide or obtain medical care for a person in custody. This bill would expressly state that these immunities do not apply to any cause of action brought under the Bane Civil Rights Act brought against a peace officer or the peace officer's employing agency. In addition, the bill expressly states that it would not affect existing judicial and prosecutorial immunity for individual attorneys acting on behalf of a prosecutor's office in a prosecutorial capacity.

Granting New Powers to the Commission. Although some of the opponents of this bill point out that the Commission already provides training, requires minimum standards, receives reports of officer misconduct, and certifies peace officers who are not otherwise disqualified, beyond this, the Commission under existing law has little or no power to investigate complaints of misconduct or impose any disciplinary actions. Moreover, existing law expressly states that the Commission does not have the power to decertify peace officers, unless the certification was the result of an error or of fraud or misrepresentation on the part of the person seeking certification. This bill would give the Commission the power to investigate and determine the fitness of any person to service as a peace officer. Moreover, the bill would create a new division within the Commission to not only investigate but to take action against a peace officer's certification. The bill would also create a new advisory board that would hold public hearings and make a recommendation to the Commission as to whether a peace officer's certification should be revoked. The bill requires the Commission to adopt this recommendation if it is supported by clear and convincing evidence.

According to the Author:

According to the author, SB 731 creates a statewide process to revoke a peace officer's certification for a criminal conviction and certain acts of serious misconduct without regard to conviction. Additionally, the bill will correct misinterpretations and impediments to full civil rights enforcement using the Bane Act and bringing it into conformity with federal law.

Arguments in Support:

The ACLU of California, one of the co-sponsors of this legislation, supports this bill because it will create a statewide process to revoke the professional certificates issued to peace officers for serious acts of misconduct. Additionally, the bill strengthens the Tom Bane Civil Rights Act (Bane Act) to correct misinterpretations and impediments to full civil rights enforcement under law. The ACLU points out that since the enactment of SB 1421 [(Skinner) Chapter 988, Statutes of 2018], which disclosed previously hidden police records to public scrutiny, there have been numerous revelations of officers committing misconduct without facing any real consequences. These records show, according to the ACLU, that local law enforcement cannot be relied upon to protect our residents from people that should not be police officers. The ACLU contends the decertification provisions will increase accountability of peace officers. In addition, the ACLU believes that this bill will correct the problematic court interpretations [discussed in the analysis above] that have prevented people injured by police misconduct and their families from seeking meaningful redress for violations of their rights. Finally, the ACLU supports the provisions of this bill that counter the invented concept of qualified immunity in federal law by creating robust state civil rights protections that do not shield officers from wrongdoing.

Arguments in Opposition:

This bill is opposed by law enforcement groups. Opponents believe this bill unnecessary because, they believe, the current system, as it relates to officer misconduct investigations works well. Second, as to the provisions removing immunity, opponents claim that peace officers cannot possibly do their job if there's always a lingering fear that even if they do the job by the book and up to policy standard, they could still potentially face a civil action. Finally, opponents claim that SB 731 would create, for the first time, a licensing protocol for all peace officers in California. Some opponents suggest that they would support some means of revoking certificates, especially when it comes to felonies and other types of serious misconduct. However, they remain steadfastly opposed to the other provisions of the bill, especially those related to loss of immunity for Bane Act causes of action.

FISCAL COMMENTS:

According to the Assembly Appropriations Committee:

1. Costs (General Fund (GF)) to the Commission on Peace Officer Standards and Training (POST) of $650,000 in fiscal year (FY) 2020-21 and between $28 million dollars and $37 million dollars annually thereafter for additional staff and infrastructure to create and operate the Peace Officer Standards and Accountability Division (POSAD) and the nine-member POSAD Board. POST estimates it would have to hire approximately 227 new staff members and acquire two more locations in the state in addition to its existing POST headquarters. POST also concludes the approximately 80 new hires that will be responsible for investigating law enforcement misconduct should be peace officers. This will likely result in increased personnel and equipment costs since peace officers are entitled to specific benefits. POST also estimates if the total number of investigations exceeds 1,200 per year, it would need staff beyond the estimated 227 new staff to handle increased workload.
2. Costs (GF/Legal Services Revolving Fund), of $264,000 in FY 2020-21, $465,000 in FY 2021-22, $273,000 in FY 2023-24 and $108,000 annually thereafter to the Department of Justice (DOJ) in additional staff and infrastructure to provide peace officer employment information, review and provide peace officer disciplinary materials pertaining to serious misconduct, track certifications and possibly cover the cost of certification. Additional costs, possibly in the low-to mid-hundreds of thousands of dollars annually, may also result from increased staff workload given this bill expands the Bane Act, which authorizes the DOJ to prosecute injunctive actions to prevent interference with a constitutional right.
3. Costs (GF) possibly in upper hundreds of thousands of dollars to low millions of dollars annually to the California Department of Corrections and Rehabilitation (CDCR) in increased staff workload to provide POST with peace officer employment information, and review and provide POST with disciplinary materials pertaining to serious misconduct. Although CDCR personnel certification and training are regulated by the Commission on Correctional Peace Officer Training Standards (CCPOST), this bill generally requires all peace officers, as defined by Government Code section 1029, to receive a POST certification. Government Code section 1029 refers to all peace officers working for any state, city or county agency. It is unclear whether POST would still be responsible for issuing a certification to a CDCR employee and investigating a claim of serious misconduct against a correctional officer even though CCPOST regulates correctional officer training.

CDCR employs up to 32,000 peace officers. This bill may require CDCR to report employment information on all its peace officers and provide any relevant discipline materials beginning January 2021. If CDCR is required to hire five new full-time employees to comply with the requirements of this bill at an average total cost per employee of $130,000, costs would be $650,000 annually. CDCR may also be responsible for tracking initial and periodic certifications as well as paying the cost of certification if CDCR peace officers are covered by this bill. If CDCR is responsible for paying the costs of certification, and each certification were to cost $200 every other year, the total cost for all CDCR employees would be $6.4 million dollars. Additional costs to CDCR may also result from the expanded Bane Act liability since the bill eliminates immunity in cases involving inmate injury and failure to provide inmate medical care.

1. Costs (GF), possibly in the low millions of dollars annually, to the California Highway Patrol (CHP) in additional staff and infrastructure to provide peace officer employment information and disciplinary records to POST for approximately 6,000 peace officers. Additionally, if CHP is responsible for paying the cost of certification, based on the assumptions above, the cost would be approximately $1.2 million dollars for 6,000 employees.
2. Costs (GF), possibly in the low tens of millions of dollars annually across several state agencies that employ peace officers - such as the Department of Fish and Wildlife, Department of Insurance, California State Universities, University of California campuses, community college districts, Department of Consumer Affairs, Department of Alcoholic Beverage Control, Department of Insurance and the Department of Forestry and Fire Protection - in additional staff and infrastructure to provide employment and disciplinary information regarding all active peace officers to POST, track certification expirations and possibly pay costs for officers to re-certify every two years. Costs will depend on the number of peace officers each department employs.
3. Possible state-reimbursable local costs (GF/local funds) in the millions of dollars annually in additional staff and infrastructure for cities and counties to provide information to POST regarding the employment status and relevant disciplinary records for peace officers and possibly cover the costs of certification. According to the U.S. Bureau of Labor Statistics, there are approximately 100,000 peace officers employed in the state. If 50,000 peace officers are employed on the local level, costs for certification may be $10 million dollars statewide. Local costs to comply with this measure would be subject to reimbursement by the state to the extent that the Commission on State Mandates determines that this bill imposes a state-mandated local program.
4. Cost pressure (GF/Trial Court Trust Fund), possibly in the mid to upper hundreds of thousands of dollars to the trial courts in increased workload. This bill expands the Bane Act in a manner that may increase the number of civil actions filed in state court. If 25 new lawsuits are filed annually statewide and proceed to trial resulting in a minimum of use of four days of court time, at an estimated cost of approximately $7,644 for an eight-hour court day, the approximate cost to the trial courts is $764,400. Although courts are not funded on the basis of workload, increased pressure on the courts and staff may create a need for increased funding for staff and infrastructure.

VOTES:

SENATE FLOOR: Vote not relevant

YES:

ASM RULES: 8-1-3

YES: Cooley, Carrillo, Grayson, Kamlager, Maienschein, Quirk-Silva, Robert Rivas, Levine

NO: Mathis

ABS, ABST OR NV: Diep, Flora, Ramos

ASM JUDICIARY: 7-3-1

YES: Mark Stone, Chiu, Gonzalez, Holden, Kalra, Maienschein, Reyes

NO: Gallagher, Kiley, Obernolte

ABS, ABST OR NV: Chau

UPDATED:

VERSION: August 25, 2020

CONSULTANT: Thomas Clark / JUD. / (916) 319-2334 FN: 0003482

Date of Hearing: August 26, 2020

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

SBPCA Bill Id:SB 731

Author:(Bradford) – As Amended Ver:August 25, 2020

SENATE VOTE: Not relevant

SUBJECT: Peace Officers: certification: civil rights

SYNOPSIS

This bill seeks to increase peace officer accountability and create a means of decertifying officers who engage in serious misconduct. For purposes of this analysis, the provisions of this bill can be divided into two parts: First, the bill makes three changes to the Bane Civil Rights Act (Act) in order to do the following: (1) clarify that threats, intimidation, and coercion may constitute an inherent interference with a right for purposes of the Act, without a showing of specific intent to interfere with those rights in addition to the threats, intimidation, or coercion; (2) declare that the immunity usually enjoyed by public entities and public employees under certain provisions of the Government Claims Act does not apply to actions brought under the Act; and (3) allow a family member to bring an action on behalf of a person who died as a result of a violation of the Act. Second, the bill grants new powers to the Commission on Peace Officer Standards and Training (Commission), most notably by giving the Commission the power to investigate and determine peace officer fitness and to decertify officers who engage in “serious misconduct.” Under existing law, the Commission merely develops standards and training requirements, identifies factors that disqualify a person from becoming a peace officer in the first instance, and issues different levels of certification to peace officers. While the existing Commission may cancel a certification that was issued in error or was a result of fraud or misrepresentation, it is prohibited from ever cancelling a properly-issued certification. California is apparently only one of a few states that does not provide for decertification.

The bill is supported by dozens of civil rights, social justice, and labor organizations, as well as a number of public entities and officials, who argue that the bill will increase police accountability at a time when too many well-documented instances of police brutality, especially against African Americans, go unpunished. The bill is opposed by several law enforcement organizations who claim that the bill is unnecessary in light of existing mechanisms for investigation and prosecution of officer misconduct. Opponents also fear that changes to the Bane Act will expose officers to liabilities and thereby interfere with their ability to do their job. Although some of the law enforcement groups write that they would support a decertification process, they claim that the changes proposed by this bill possibly go too far and, at any rate, should not be adopted in a truncated legislation session. This bill dealt with an entirely different topic when it passed out of the Senate on a 38-0 vote.

SUMMARY: Makes several changes relating to police officer decertification and liability for civil rights violations. Specifically, this bill:

1. Provides, for purposes of the Tom Bane Civil Rights Act, that a threat, intimidation, or coercion need not be separate and independent from, and may be inherent in, any interference or attempted interference with a right. Specifies that a person bringing suit under the Bane Act need not prove that a person being sued under the Act had specific intent to interfere or attempt to interfere with a right secured by the Constitution or law.
2. Provides that a cause of action under the Tom Bane Civil Rights Act for the death of a person may be asserted by a family member, to the same degree of relationship as described in the existing wrongful death statute.
3. Provides that, with the exception of judicial and prosecutorial immunity for individual attorneys acting on behalf of a prosecutor’s office in a prosecutorial capacity, certain state immunity provisions provided in the Government Claims Act shall not apply to any cause of action brought under the Tom Bane Civil Rights Act against a peace officer or the department or agency employing the peace officer.
4. Disqualifies a person who has been convicted of certain crimes against public justice, including falsification of records, bribery, or perjury, from obtaining employment as a peace officer. Provides further than any person who has been certified as a police officer and who has surrendered that certification, or has had that certification revoked, is prohibited from obtaining employment as a peace officer.
5. Grants the existing Commission on Peace Officer Standards and Training (Commission) the power to investigate and determine the fitness of any person to serve as a peace officer in the state and directs the Commission to issue or deny certification, as specified.
6. Creates the Peace Officer Standards Accountability Division (Division) within the Commission to investigate and prosecute proceedings against the peace officer’s certification, and requires the Division to review and investigate grounds for decertification and make findings as to whether grounds for action against an officer’s certification exists, and to notify the officer of its findings, as specified.
7. Creates the nine-member Peace Officer Standards Accountability Advisory Board (Board) and requires it to hold public meetings to review investigative findings and to make recommendations to the Commission. Requires the Commission to adopt the recommendations of the Board if it is supported by clear and convincing evidence and, if action is to be taken against an officer’s certification, return the determination to the Division to commence administrative proceedings and to notify relevant officials, as specified.
8. Makes all records related to the revocation of a police officer’s certification a public record and requires that investigation records be retained for 30 years.
9. Requires any agency employing peace officers to report to the Commission the employment, appointment, or separation from employment of a peace officer, any complaint, charge, allegation, or investigation into the conduct of a peace officer that could render the officer subject to revocation, findings by civil oversight entities, and civil judgments that could affect the officer’s certification.
10. Requires, in case of separation from employment or appointment, each agency to execute an affidavit-of-separation form adopted by the Commission describing the reason for separation, and specifies that the affidavit-of-separation be signed under penalty of perjury.
11. Requires the Board to report annually on the activities of the Division, Board, and Commission, relating to the certification program, including the number of applications for certification, the events reported, the number of investigations conducted, and the number of certificates surrendered or revoked.

EXISTING LAW:

1. Provides, under the Tom Bane Civil Rights Act, that if a person or persons, whether or not acting under color of law, interfere or attempt to interfere, by threats, intimidation, or coercion, with the exercise or enjoyment of any rights secured by the Constitution or laws of the United States, or by the Constitution or laws of the state of California, the Attorney General, or any district attorney or city attorney, is authorized to bring a civil action for equitable relief and a civil penalty. (Civil Code Section 52.1 (b).)
2. Permits a person whose exercise or enjoyment of rights were interfered with in violation of the Tom Bane Civil Rights Act to institute a civil action in their own name and on their own behalf for damages, as specified. (Civil Code Section 52.1 (c).)
3. Provides, under the Government Claims Act, that unless a statute provides otherwise, a public entity is not liable for injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person. However, a public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of their employment if the act or omission would otherwise have given rise to a cause of action against that employee. (Government Code Section 814 et seq.)
4. Provides that public employees are not liable for injury caused by their instituting or prosecuting any judicial or administrative proceeding within the scope of their employment, even if they act maliciously and without probable cause. (Government Code Section 821.6.)
5. Provides, subject to certain exemptions, that a public entity or public employee is not liable for an injury to a prisoner, or an injury caused by the failure of an employee, other than a healing arts employee, to furnish or obtain medical care for a prisoner in their custody. However, nothing exonerates a public employee from injury proximately caused by their negligent or wrongful act or omission. Specifies that in such case the public entity may, but is not required to, pay any judgment, compromise, or settlement, but may be required to indemnify any public employee, in any case where the entity is immune from liability. (Government Codes Sections 844.6 and 845.6.)
6. Requires minimum training and moral character requirements for peace officers, as defined, while at the same time identifying certain disqualifying factors, including a felony conviction. (Penal Code Section 830 et seq. and Government Code Sections 1029 and 1031.)
7. Establishes the Commission on Peace Officer Standards and Training to set minimum standards for the recruitment and training of peace officers, develop training courses and curriculum, and establish a professional certificate program that awards different levels of certification based on training, education, experience, and other relevant prerequisites. Authorizes the Commission to cancel a certificate that was awarded in error or fraudulently obtained; however, the Commission is prohibited from canceling a properly-issued certificate. (Penal Code Sections 830-832.10 and 13500 et seq.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: According to the author, “SB 731 creates a statewide process to revoke a peace officer’s certification for a criminal conviction and certain acts of serious misconduct without regard to conviction. Additionally, the bill will correct misinterpretations and impediments to full civil rights enforcement using the Bane Act and bringing it into conformity with federal law. Law enforcement officers are entrusted with great powers to carry a firearm, stop and search, use force, and arrest; to balance this, they must be held to a higher standard of accountability. Communities in California must work to rebuild the trust with law enforcement officers. While the vast of law enforcement officers do their jobs well and with integrity, a small percentage of bad-actors continue to commit acts of misconduct. California must have a mechanism to hold these officers accountable.”

In short, this bill seeks to increase peace officer accountability and provide a means of decertifying police officers who engage in serious misconduct. For purposes of this analysis, the provisions of this bill can be divided into two parts: First, the bill makes three changes to the Bane Civil Rights Act in order to do the following: (1) clarify that threats, intimidation, and coercion may constitute an inherent interference with a right for purposes of the Act, without need of showing of specific intent to interfere with those rights; (2) declare that the immunity usually enjoyed by public entities and public employees under certain provisions of the Government Claims Act does not apply to actions brought under the Bane Act; and (3) allow a family member to bring an action on behalf of a person who died as a result of a violation of the Act. Second, the bill grants new powers to the Commission on Peace Officer Standards and Training, most notably by giving the Commission the power to investigate and determine peace officer fitness and to decertify officers who engage in “serious misconduct.” Under existing law, the Commission merely develops standards and training requirements, identifies factors that disqualify a person from becoming a peace officer in the first instance, and issues different levels of certification to peace officers. While the existing Commission may cancel a certification that was issued in error or was a result of fraud or misrepresentation, it is prohibited from ever cancelling a properly-issued certification. California is apparently only one of a few states that does not provide for decertification.

Bane Act and Existing Case Law. The Bane Act authorizes a cause of action against a person who, whether or not acting under “color of law,” uses threats, intimidation, or coercion to interfere with the ability of another person in the exercise and enjoyment of any rights guaranteed under the U.S. or California constitutions, or any right guaranteed under federal or state statute. The action may be brought by the Attorney General or public prosecutor, or it may be brought by the person whose rights were violated. Some courts have read this provision more restrictively, as essentially imposing two requirements: (1) that there must a threat, intimidation, or coercion and (2) that the threat, intimidation, or coercion must be done with the intent to interfere with the other person’s rights. In other words, some courts have held that the “threat, intimidation, or coercion” must be independent of the intent to interfere with the right. (See e.g. Cornell v. City and County of San Francisco (2017) 17 Cal.App.5th 766; Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947.) However, other courts have suggested that threats, intimidation, or coercion that interfere with the exercise of a right are an inherent violation of the Bane Act, and that one does not need to show a separate and independent intent to interfere with a legal right. In other words, it is sufficient that the threat, intimidation, or coercion interfered with the exercise or enjoyment of the right, or, conversely, that coercion is inherent with any purposeful interference of a right. (See e.g. M.H. v. County of Alameda (2013) 90 F. Supp. 3d 889, citing Venegas v. County of Los Angeles (2004) 32 Cal. 4^th 820.) This bill resolves these conflicting interpretations in favor of the latter decisions, and in a manner that seems more reasonably related to the intent of Bane Act – to prohibit threats, intimidation, and coercion that interfere with the exercise and enjoyment of legal rights.

Existing case law has also held that actions under the Bane Act may only be brought by and on behalf of the person whose rights were interfered with. Consequently, some courts have dismissed actions brought by family members on behalf of a person who died as a result of the Bane Act violation. (See e.g. Boccato v City of Hermosa Beach (1994) 29 Cal. App. 4^th 1797; BART v. Superior Court (1995) 38 Cal. App. 4th 141 (citing Boccato and noting, in dicta, “The Bane Act is simply not a wrongful death provision. It clearly provides for a personal cause of action for the victim of a hate crime.”)

Despite the claims of supporters of this bill, this interpretation by the courts is not entirely unreasonable, given that the Bane Act expressly states that the individual whose rights were interfered with “may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages.” (Civil Code Section 52.1 (c), emphasis added.) Nonetheless, there is no reason that the Legislature cannot amend the Bane Act to permit a family member, as defined, to bring a cause of action on behalf of another family member who died as a result of a Bane Act violation. Indeed, any other rule would deny redress of the ultimate injury that may result from a violation.

No Government Immunity for Bane Act Violations. California’s Government Claims Act (sometimes referred to as the “Tort Claims Act”) provides that public entities and public employees are generally immune from liability for harms that they might cause while carrying out their duties, unless another statute expressly provides for liability. Although many statutes do indeed create liability for government actors in certain situations, as a general rule public entities and public employees enjoy at least qualified immunity in most instances. Three provisions of the Government Claims Act are especially germane to this bill. Government Code Section 821.6 grants absolute immunity to public employees for any “injury caused by their instituting or prosecuting any judicial or administrative proceeding within the scope of their employment, even if they act maliciously and without probable cause.” This provision conceivably protects a peace officer from liability on the grounds that the officer was prosecuting an administrative duty within the scope of employment. Government Code Sections 844.6, and 845.6 generally grant qualified immunity to public employees for injuries caused to a prisoner, or for failure to provide or obtain medical care for a person in custody. This bill would expressly state that these immunities do not apply to any cause of action brought under the Bane Civil Rights Act brought against a peace officer or the peace officer’s employing agency. In addition, the bill expressly states that it would not affect existing judicial and prosecutorial immunity for individual attorneys acting on behalf of a prosecutor’s office in a prosecutorial capacity.

Granting New Powers to the Commission. Although some of the opponents of this bill point out that the Commission already provides training, requires minimum standards, receives reports of officer misconduct, and certifies peace officers who are not otherwise disqualified, beyond this, the Commission under existing law has little or no power to investigate complaints of misconduct or impose any disciplinary actions. Moreover, existing law expressly states that the Commission does not have the power to decertify peace officers, unless the certification was the result of an error or of fraud or misrepresentation on the part of the person seeking certification. This bill would give the Commission the power to investigate and determine the fitness of any person to service as a peace officer. Moreover, the bill would create a new division within the Commission to not only investigate but to take action against a peace officer’s certification. The bill would also create a new advisory board that would hold public hearings and make a recommendation to the Commission as to whether a peace officer’s certification should be revoked. The bill requires the Commission to adopt this recommendation if it is supported by clear and convincing evidence.

Peace Officer “Decertification” for “Serious Misconduct.” While the provisions relating the Commission, Division, and Board set forth the process of investigating misconduct that could lead to decertification, the core of the “decertification” provisions reside in proposed new Section 13510.8 of the Penal Code. That provision requires revocation of peace officer certification if an investigation determines that the peace officer has (1) become ineligible to hold office as a police officer under the existing disqualification provisions or (2) been terminated for cause from employment as a peace officer or has otherwise engaged in any enumerated acts of “serious misconduct.” Acts of “serious misconduct” include the following:

• Dishonesty relating to the reporting, investigation, or prosecution of a crime, or relating to the reporting or investigation of misconduct by a peace officer.
• Abuses of power, including intimidating witnesses, knowingly obtaining a false confession, and knowingly making a false arrest.
• Physical abuse, including unauthorized use of force.
• Sexual assault.
• Demonstrating bias on the basis of race, national origin, religion, gender identity or expression, housing status, sexual orientation, mental or physical disability, or other protected status in violation of law or department policy or inconsistent with a peace officer’s obligation to carry out their duties in a fair and unbiased manner.
• Violation of the law or other acts that are inconsistent with an officer’s obligation to uphold the law or respect the rights of members of the public.
• Participation in a law enforcement gang or other organization that engages in a pattern of rogue on-duty behavior that violates the law or fundamental principles of professional policing, including, but not limited to, unlawful detention, use of excessive force, falsifying police reports, fabricating evidence, targeting persons for enforcement based solely on protected characteristics of those persons, theft, use of alcohol or drugs while on duty, protection of other members from disciplinary actions, and retaliation against other officers who threaten or interfere with the activities of the group.
• Failing to cooperate with an investigation into potential police misconduct, including an investigation conducted pursuant to the provisions of this bill.

Presumably, any of these acts would already be grounds for termination of employment under existing law. However, under this bill, a peace officer would not merely be fired for engaging in the act; that officer’s certification would be revoked. Presumably, the main difference between termination, on the one hand, and revocation of certification, on the other, would be that the peace officer who lost certification could not be rehired by another department. The practical significance of this change may not be too large, however, because existing law already requires the employing agency to place any records of complaints and investigations of misconduct in the officer’s personnel file. Furthermore, peace officers must agree to allow any other department from which the officer seeks employment to have access to the personnel files maintained by the prior department. However, this change no longer is dependent on the new department to do its full due diligence before hiring.

Inadequacies of Existing Law. As summarized below, the law enforcement groups that oppose this bill raise several general and specific objections. However, one common theme in all of the letters of opposition is the claim that the bill is “unnecessary” because existing law and practice already require that officers meet minimum standards, including moral character background checks, and provide for disqualification of officers who have committed a felony. Opponents also note that existing law provides a system for filing complaints against peace officers and it allows law enforcement agencies to investigate complaints and take disciplinary action, including termination, when appropriate. Moreover, existing law requires employing departments to report complaints to the Commission. However, many observers of the current scene might question the opposition’s claims that the existing system is adequate, especially in light of high profile cases in which police officers committing clearly egregious acts seem to go unpunished. No doubt many police departments have an interest in preventing officers from committing acts of serious misconduct, but it is also reasonable to assume that local police departments have some inherent, and indeed understandable, bias toward protecting their officers. In addition, as stressed in the ACLU’s letter of support, this bill will allow for a “two-track” process for decertification. For example, if an officer is terminated for serious misconduct, “decertification would be warranted as a matter of course.” However, if an officer engaged in serious misconduct, as set forth in the bill, without being terminated, decertification would be based on the investigation and determination of the Board.

Relatedly, the examples of “serious misconduct” enumerated in this bill include conduct that falls short of felony crimes that, under existing law, disqualify a person from becoming a peace officer in the first instance. For example, “serious misconduct” includes dishonesty, racial bias, “rogue” behavior that violates professionalism, or failure to cooperate in an investigation – none of which would necessarily constitute a crime, let alone a felony. Proponents of the bill see this broader definition of “serious misconduct” as a way to reach behavior that is unacceptable, even egregious, but yet may not meet the definition of a crime. The opponents of this measure, on the other hand, see the same definition as overly broad. For example, one of the opposition letters suggest that a peace officer could be decertified “merely for using bad language.” It is not entirely clear to which provision this claim refers, except to the extent that “bad language” was evidence of racial or other bias. However, the opponents appear to overstate the likely reach of the bill’s definition. Under this bill, for example, “bad language” could only be evidence of “serious misconduct” if it were severe enough to demonstrate a bias “inconsistent with a peace officer’s obligation to carry out their duties in a fair and unbiased manner.”

ARGUMENTS IN SUPPORT: The ACLU of California, one of the co-sponsors of this legislation, supports this bill because it will “create a statewide process to revoke the professional certificates issued to peace officers for serious acts of misconduct. Additionally, the bill strengthens the Tome Bane Civil Rights Act (Bane Act) to correct misinterpretations and impediments to full civil rights enforcement under law.” The ACLU points out that since the enactment of SB 1421 (Chap. 988, Stats. 2018), which disclosed previously hidden police records to public scrutiny, “there have been numerous revelations of officers committing misconduct without facing any real consequences.” These records show, according to the ACLU, “that local law enforcement cannot be relied upon to protect our residents from people that should not be police officers.” The ACLU contends the decertification provisions in this bill will increase accountability of peace officers in various ways. In addition, the ACLU believes that this bill will correct the “problematic court interpretations [discussed in the analysis above] that have prevented people injured by police misconduct and their families from seeking meaningful redress for violations of their rights.” Finally, the ACLU supports the provisions of this bill that counter the “invented” concept of “qualified immunity” in federal law by creating “robust state civil rights protections” that do not shield officers from wrongdoing.

The Consumer Attorneys of California (CAOC) supports SB 731 because it “seeks to prevent the illegal use of force and ensure accountability when illegal use of force occurs by (1) creating a decertification process for officers fired for misconduct and (2) restoring California’s Tom Bane Civil Rights Act to its original strength after having being undercut by errant court rulings that have weakened its effect, contrary to its original intent.” CAOC, like the ACLU, believes that recent court decisions on the Bane Act have greatly undermined its effectiveness by requiring specific intent independent of the threats, intimidation, or coercion that interferes with the exercise of a constitutional or statutory right. In addition, CAOC contends that courts have misconstrued the Bane Act by preventing family members of persons who died as a result of a Bane Act violation from bringing an action on behalf of the decedent, in the same way that family members may bring a wrongful death action.

ARGUMENTS IN OPPOSITION: The California Association of Highway Patrolmen (CAHP), opposes this bill for three reasons. First, CAHP contends that “SB 731 creates a civil rights panel under the Attorney General that would review officer malfeasance. We believe this is completely unnecessary. The current system, as it relates to officer misconduct investigations within a department, along with the District Attorney and possible Attorney General investigations, works well.” Second, as to the provisions removing the existing government immunity, CAHP claims that “a peace officer cannot possibly do their job if there’s always a lingering fear that even if they do the job by the book and up to policy standard, they could still potentially face a civil action.” Finally, CAHP claims that SB 731 would create, “for the first time, a licensing protocol for all peace officers in California.” CAHP writes that it would be willing to support a means of revoking certificates currently issued by the existing Peace Officers Standards and Training (POST), especially when it comes to felonies and other types of serious misconduct. “However,” CAHP concludes, “we would ask that other [provisions] mentioned above be removed from the bill.”

The Fraternal Order of Police (FOP), joined by regional sheriffs and police officer associations, strongly oppose SB 731 because they believe it will turn “the Commission on Peace Officer Standards and Training (POST) into a licensing entity, giving them the authority to revoke a peace officer’s license.” FOP contends that the decertification process created by this bill is “unprecedented,” and that the effort to create “a new licensing scheme” for all of the 78,000 sworn peace officers in the state “amidst a pandemic and during a truncated Legislative session is incomprehensible.” Like many of the other law enforcement groups, FOP believes that the bill is unnecessary because “local law enforcement agencies, as employers, can already fire or choose not to hire a peace officer.” FOP also claims that the reporting requirements are too broad, because it requires the reporting of “all complaints,” seemingly even false or unsubstantiated reports or complaints. Finally, FOP writes that law enforcement officers “and their employee representatives should handle these matters with their employing agency through the current internal affairs process.”

Several other law enforcement organizations oppose this bill for substantially the same reasons as those articulated above.

Oppose Unless Amended: The League of California Cities (League) and the City of Pleasanton oppose this bill unless amended to address their respective concerns. The League opposes the Bane Act provisions and would remove its opposition if the bill were restricted to the decertification process. The City of Pleasanton opposes this bill because it finds the triggers for decertification review “subjective and vague,” and unlike other professions, review is performed by a board that is “largely unfamiliar with professional standards and best practices;” it would remove its opposition if this issue were addressed.

Related Pending Legislation. AB 1299 (Salas) would require the Commission to house information on investigations and results of sustained findings of misconduct to be accessed by law enforcement agencies conducting pre-employment background investigations on candidates for employment. AB 1299 is on Third Reading on the Senate Floor, at the time of this writing.

AB 1022 (Holden) would disqualify a person from being a peace officer if they have been found by a law enforcement agency that employs them to have either used excessive force that resulted in great bodily injury or death or to have failed to intercede in that incident as required by a law enforcement agency’s policies. AB 1022 was held on the Senate Appropriations Suspense File.

AB 1506 (McCarty) would create a division within Department of Justice to conduct an independent investigation of any officer-involved shooting or other use of force that resulted in the death of a civilian if requested by a law enforcement agency. AB 1506 is on Third Reading on the Senate Floor, at the time of this writing.

REGISTERED SUPPORT / OPPOSITION:

Support

Alameda County Public Defender's Office

Alliance for Boys and Men of Color

Alliance San Diego

American Civil Liberties Union of Northern California

American Civil Liberties Union of Southern California

American Civil Liberties Union of San Diego and Imperial Counties

Asian Americans Advancing Justice - California

Asian Law Alliance

Asian Solidarity Collective

Bend the Arc: Jewish Action

Brothers, Sons, Selves Coalition

California Attorneys for Criminal Justice

California Conference Board of the Amalgamated Transit Union

California Department of Insurance

California Employment Lawyers Association

California Faculty Association

California Immigrant Policy Center

California Pan - Ethnic Health Network

California Public Defenders Association

California- Stop Terrorism and Oppression by Police (STOP) Coalition

Californians for Safety and Justice

City of Alameda

City of Concord

City of Oakland

Communities United for Restorative Youth Justice (CURYJ)

Community Advocates for Just and Moral Governance

Concerned Citizens for Justice

Consumer Attorneys of California

Consumer Watchdog

Drug Policy Alliance

East Bay for Everyone

Ella Baker Center for Human Rights

Empowering Pacific Islander Communities (EPIC)

Equal Rights Advocates

Giffords

Having Our Say Coalition

Hillcrest Indivisible

Indivisible South Bay LA

Indivisible Stanislaus

Innercity Struggle

League of Women Voters of California

Los Angeles Black Worker Center

Mexican American Bar Association of Los Angeles County

Mid-city Community Advocacy Network

National Association of Social Workers, California Chapter

National Juvenile Justice Network

National Lawyers Guild Los Angeles

National Police Accountability Project

Orange County Equality Coalition

Pacifica Social Justice

Professional & Technical Engineers, Local 21, IFPTE/AFL-CIO

Recording Industry Association of America

Sacramento Area Chapter of ACLU

San Diego LGBT Pride

Southeast Asia Resource Action Center

Stonewall Democratic Club

SURJ Marin

The Resistance Northridge-indivisible

Think Dignity

Tides Advocacy

UDW/AFSCME Local 3930

Voices for Progress Education Fund

We the People - San Diego

Women For: Orange County

YALLA Indivisible

Youth Alive!

Youth Justice Coalition

Oppose

Association for Los Angeles Deputy Sheriffs

Association of Orange County Deputy Sheriff's

California Association of Highway Patrolmen

California Association of Joint Powers Authorities

California Fraternal Order of Police

California Police Chiefs Association

California State Sheriffs' Association

California Statewide Law Enforcement Association

Long Beach Police Officers Association

Los Angeles County Sheriff’s Department

Peace Officers Research Association of California (PORAC)

Riverside Sheriff’s Association

Sacramento County Deputy Sheriffs Association

San Bernardino County Safety Employees' Benefit Association

Oppose (Unless Amended)

City of Pleasanton

League of California Cities

Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334

 THIRD READING  

Bill No: SB 731

Author: Bradford (D)

Introduced: 2/22/19

Vote: 21

SENATE LABOR, PUB. EMP. & RET. COMMITTEE: 5-0, 4/24/19

AYES: Hill, Morrell, Jackson, Mitchell, Pan

SENATE APPROPRIATIONS COMMITTEE: 6-0, 5/16/19

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

NOES:

SUBJECT: Workers’ compensation: risk factors

SOURCE: Author

DIGEST:

This bill prohibits the reduction (or apportionment) of permanent disability benefits on the basis of race, religious creed, color, national origin, age, gender, marital status, sex, sexual identity, sexual orientation, or genetic characteristics.

ANALYSIS:

Existing law:

1. Establishes a workers’ compensation system that provides benefits to an employee who suffers from an injury or illness that arises out of and in the course of employment, irrespective of fault. This system requires all employers to secure payment of benefits by either securing the consent of the Department of Industrial Relations to self-insure or by securing insurance against liability from an insurance company duly authorized by the state.
2. Requires that, if an occupational injury results in a permanent disability, the percentage of disability to total disability shall be determined, and the disability payment computed on the basis of the percentage of disability to total disability. (Labor Code §4658)
3. Requires that, when doctors are determining the nature and severity of an occupational injury, the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition) must be used to measure physical impairment and determine an injured worker’s whole person impairment (WPI). (Labor Code §4660.1)
4. Creates the Permanent Disability Ratings Schedule, which increases the WPI by 40% and adjusts for occupation and age to calculate a percentage of permanent disability (PD), also known as a PD rating. (Labor Code §4660.1)
5. Requires that any physician who prepares a report addressing the issue of permanent disability include an apportionment determination, where the physician determines what approximate percentage of the permanent disability was caused by other factors, including prior industrial injuries. (Labor Code §4663)
6. Requires workers’ compensation law to be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment. (Labor Code §3202)

This bill:

1. Prohibits the consideration of race, religious creed, color, national origin, age, gender, marital status, sex, sexual identity, sexual orientation, or genetic characteristics in the development of an apportionment declaration.
2. Makes legislative findings and declarations on the need to eliminate bias and discrimination in the workers’ compensation system.

Comments

1. What is Apportionment? Under existing law, every time a doctor prepares a report on if a claimed workplace injury is permanently disabling, the physician must determine causation AND what percentage of the injury is due to non-occupational issues, including prior workplace injuries. An injured worker’s PD award is then adjusted down by this percentage. Only a physician can determine if apportionment is appropriate and to what degree.

This makes apportionment a uniquely provocative policy. On one hand, it would be difficult to defend requiring an employer to provide PD awards for an injury that is unrelated to work or occurred at another place of employment. This is why language limiting PD awards to only cover the consequences of a workplace injury has been in law since 1917. While the current apportionment statute dates back to 2004, the idea behind it is nearly a century old.

On the other hand, determining what percentage of an injury is or is not occupational is highly dependent on the judgment of the physician. Workers’ Compensation Appeals Board (WCAB) case law provides that an apportionment finding is only valid if the physician’s medical opinion:

• 1. Framed in terms of reasonable medical probability;
  2. Not speculative;
  3. Based on pertinent facts and on an adequate examination;
  4. Sets forth the reasoning in support of its conclusion; and
  5. Explains how and why the apportionable factor is responsible for the disability.

(See Escobedo v. Marshalls, (2005) 70 Cal. Comp. Cases 604)

Despite this case law, sometimes physicians fail to meet these requirements when making an apportionment determination. Apportionment determinations by QMEs (Qualified Medical Evaluator) are and will be a cause and source of litigation in workers’ compensation system.

One final note on apportionment: the apportioning of a PD award has no impact on the ability of an injured worker to receive medical care. Even in the event that a PD award is apportioned to 0%, the worker has a right to medical care if the injury arises or occurs in the course of employment (See Employers Mutual Liability Ins. Co. of Wisconsin v. Industrial Acc. Com. (Gideon) (1953) 41 Cal.2d 676 and Reyes v. Hart Plastering (2005) 70 Cal.Comp.Cases 223).

1. City of Jackson and Apportionment. The issue of genetics in apportionment decisions recently came to the fore in City of Jackson v. WCAB (Rice), (2017) 11 Cal.App.5th 109. In City of Jackson, a QME (based on “family history”) apportioned a peace officer’s permanent disability award. The WCAB found this apportionment to be impermissible, as apportioning on the basis of immutable factors is impermissible, and returned the case to the local board for a new unapportioned award of permanent disability. However, the WCAB also found that apportionment based on specific, identifiable factors is permissible.

On appeal, however, the Court found that, not only was apportionment based on genetics permitted, it had been appropriately done by the QME. Specifically, City of Jackson cited three past precedents (Escobedo, Kos, and Acme Steel) to support the notion that apportionment based on genetics has been present in the workers’ compensation system since 2004. After the CA Supreme Court declined to hear City of Jackson in August of last year, it became settled law.

In response to stakeholder concerns about a potential broad reading of City of Jackson, Senator Bradford (and later Senator Pan) authored SB 899 (2018). After significant negotiation, stakeholders reached an agreement to exclude race, gender, and national origin from any apportionment decision. This agreement removed all opposition and brought in significant support from workers’ compensation stakeholders. Despite this unprecedented level of cooperation and support, Governor Brown vetoed SB 899.

1. SB 731 and Acme Steel, Kos, & Escobedo. As discussed above, last year’s SB 899 would have prohibited the inclusion of race, gender, or national origin in an apportionment determination. However, in keeping with prior case law, the bill permitted the inclusion of genetics as an apportionable factor if the genetic is specific and identifiable. This is keeping with three of the primary cases in apportionment law: Acme Steel, Kos, & Escobedo.

In Acme Steel v. WCAB (2013) 218 Cal.App.4th 1137, the Court ruled that it was permissible to apportion a worker’s PD award for hearing loss due to genetic deterioration of the cochlea, as the QME was able to establish the non-industrial portion of the hearing loss through diagnostic tests. Similarly, in Kos v. Workers’ Comp.Appeals Bd (2008) 73 Cal.Comp.Cases 529 and Escobedo v Marshalls (2005) 70 Cal.Comp.Cases 604, an MRI and an MRI with X-Rays, respectively, were able to establish grounds for specific, individualized apportionment to genetic factors.

SB 731 would overturn this precedential case law by prohibiting the use of genetics in apportionment determinations, which may make any apportionment determination virtually impossible.

Noting the impact of upsetting longstanding case law, as well as generating significant uncertainty in what would constitute permissible apportionment, the Committee may wish to amend SB 731 to reflect the final version of SB 899 from 2018.

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

According to the Senate Appropriations Committee, by eliminating specified aspects of apportionment, this bill would likely lead to state disability payments in excess of what they would be absent the bill. The magnitude of the difference in a given year is unknown and would depend on future events; however, the impact is potentially significant (General Fund and special funds). Additionally, the Department of Industrial Relations (DIR) indicates that the bill would likely generate additional litigation; however, resulting costs to its Division of Workers Compensation to accommodate the additional workload, and the resulting costs, are also unknown (Workers Compensation Administration Revolving Fund).

SUPPORT: (Verified 5/16/19)

California Applicants’ Attorneys Association

California Conference Board of the Amalgamated Transit Union

California Conference of Mechanics

California Immigrant Policy Center

California Teamsters Public Affairs Council

Engineers and Scientists of CA, IFPTE Local 20, ALF-CIO

Inlandboatmen’s Union of the Pacific

LA County Professional Peace Officers Association

Los Angeles County Police Officers Association

Professional and Technical Engineers, IFPTE Local 21, AFL-CIO

UNITE-HERE, AFL-CIO

Utility Workers of America

OPPOSITION: (Verified 5/16/19)

Acclamation Insurance Management Services

Allied Managed Care

ARGUMENTS IN SUPPORT: The California Applicants' Attorneys Association argue the following:

“Unfortunately, bias and discrimination is deeply embedded in California's workers' compensation system. SB 731 would be an important step in addressing this intolerable and unjust situation.

California is proud to be a state with so much diversity. People of different races, religions, colors, national origins, ages, genders, marital status, sexual identity, sexual orientation, and genetics constitute the fabric of this great state's workforce. Our organization represents the most injured workers in the state and we know that these hardworking people are not always treated equally and fairly.

The single mom whose workers' compensation benefits for carpal tunnel syndrome are reduced by 30% because she's a woman. The African-American man whose permanent disability benefits for hypertension are cut in half by a judge because of his race. Government Code Section 11135 prohibits discrimination on the basis of various immutable characteristics such as sex, race, color, national origin, age, sexual orientation or genetic information. But in the recent City of Jackson v. WCAB case, the Justices ordered a 49% reduction in permanent disability benefits because of Mr. Rice's immutable characteristics of genetics and heredity.

This conflict between code section and case law must be resolved by the Legislature. SB 731 will: 1) nullify the discriminatory City of Jackson decision; 2) clarify the application of Government Code Section 11135 in the state's workers' compensation system; and 3) explicitly prohibit the reduction of workers' compensation benefits on the basis of immutable characteristics including race, gender and genetic makeup.”

ARGUMENTS IN OPPOSITION: Acclamation Insurance Management Services (AIMS) and Allied Managed Care (AMC), oppose SB 731, arguing the following:

“Last year, our organization and others participated in extensive stakeholder meetings on the issues posed by SB 731. The outcome was an unopposed bill with broad industry support for SB 899 (Pan) which stated that apportionment of PD cannot be based on race or other specified factors. We respectfully request consideration that SB 731 be amended to align with the language of SB 899 that was sent to Governor Brown last year.

Labor Code Section 4663 requires that an evaluating physician’s “report must include an apportionment determination”. The section goes on to state the physician’s obligation to address “what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury”. In other words, employers should only be responsible for the disability caused by the industrial injury.

Contrary to longstanding legal precedents, the City of Jackson vs. WCAB (Rice) case touched on genetics as a basis for reducing PD awards which appropriately raised concerns that correlation and risk factors of genetics could be used as a basis for reducing PD benefits. That is in contrast to existing law on appropriate apportionment that requires causation includes diagnosable pathology or factors the particular injured worker actually has, as opposed to what they might be at risk for.

We believe the language previously included in SB 899 is more appropriate language to further clarify existing law, which prohibits discrimination in providing workers’ compensation benefits. The language would ensure that any apportionment that involves race, religious creed, color, national origin, age, gender, marital status, sex, sexual identity, sexual orientation, or genetic characteristics is not done on those bases, considering what someone may have, but rather on specific diagnosable pathology or factors they actually have.”

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

5/18/19 11:23:17

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

SB 731 (Bradford) - Workers’ compensation: risk factors

Bill Summary:

SB 731 would prohibit the reduction (or apportionment) of permanent disability benefits on the basis of race, religious creed, color, national origin, age, gender, marital status, sex, sexual identity, sexual orientation, or genetic characteristics.

Fiscal Impact:

By eliminating specified aspects of apportionment, this bill would likely lead to state disability payments in excess of what they would be absent the bill. The magnitude of the difference in a given year is unknown and would depend on future events; however, the impact is potentially significant (General Fund and special funds). Additionally, the Department of Industrial Relations (DIR) indicates that the bill would likely generate additional litigation; however, resulting costs to its Division of Workers Compensation to accommodate the additional workload, and the resulting costs, are also unknown (Workers Compensation Administration Revolving Fund).

Background:

Current law establishes a workers’ compensation system that provides benefits to an employee who suffers from an injury or illness that occurs during the course of employment, irrespective of fault. This system requires all employers to secure payment of benefits by either (1) securing the consent of DIR to self-insure, or (2) securing insurance against liability from an insurance company authorized by the State. Also, under current law, when doctors are determining the nature and severity of an occupational injury, the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition) must be used (1) to measure physical impairment, and (2) to determine an injured worker’s whole person impairment (WPI). Additionally, current law creates the Permanent Disability Ratings Schedule (PDRS), which increases the WPI by 40 percent and adjusts for occupation and age to calculate a percentage of permanent disability, also known as a PD rating.

When physicians prepare a report regarding whether a claimed workplace injury is permanently disabling, they must determine both (1) causation, and (2) what percentage of the injury is due to non-occupational issues, including prior workplace injuries. An injured worker’s PD award is then adjusted down by this percentage. Only a physician can make the determination whether and to what extent such apportionment is appropriate. Thus, the judgement of the doctor comes into play during the apportionment process. Workers’ Compensation Appeals Board (WCAB) case law provides that an apportionment finding is only valid if the physician’s medical opinion is: (1) framed in terms of reasonable medical probability, (2) not speculative, (3) based on pertinent facts and on an adequate examination, (4) sets forth the reasoning in support of its conclusion, and (5) explains how and why the apportionable factor is responsible for the disability. Despite this case law, however, physicians can fail to meet these requirements when making an apportionment determination; in particular, apportionment determinations by QMEs (Qualified Medical Evaluators) have been consistent sources of litigation in workers’ compensation system.

The issue of genetics, speculation, and causation have been at the center of key decision in recent workers compensation cases. In Rice v. City of Jackson, ADJ8701916 (2015), a QME evaluated an injured worker with cervical radiculopathy and cervical degenerative disc disease, and apportioned (adjusted downward) the workers’ PD award by 49 percent due to “family history”, or the injured worker’s father’s history of hip and back issues. To support this claim, the QME cited several journal articles that suggested a correlation between spinal disc degeneration and genetics. However, none of the studies suggested causation between the two.

Noting this, the Workers Compensation Appeals Board (WCAB) ruled that apportioning on the basis of genetic predisposition was inappropriate, noted that apportioning on the basis of immutable factors is impermissible, and returned the case to the local board for a new unapportioned award of PD. WCAB also found that apportionment on the basis of specific, identifiable factors was still permitted.

On appeal, however, the WCAB ruling was reversed. In City of Jackson v. WCAB (Rice), (2017) 11 Cal.App.5th 109, the Court found that, not only was apportionment on the basis of genetics permitted, it has been appropriately done by the QME. The California Supreme Court declined to hear City of Jackson in August, 2017. Thus, it became settled law.

Proposed Law:

This bill would prohibit the consideration of race, religious creed, color, national origin, age, gender, marital status, sex, sexual identity, sexual orientation, or genetic characteristics in the development of an apportionment declaration.

Related Legislation:

SB 899 (Pan, 2018) would have explicitly excluded race, gender, and national origin as apportionable factors. This bill was vetoes by the Governor.

Staff Comments:

The Office of the Legislative Counsel has keyed this bill “non-fiscal.” However, the purview of this Committee, pursuant to Joint Rule 10.5, is to review and analyze bills that would, among other things, result in a substantial expenditure of state money. Thus, even though the bill was keyed “non-fiscal,” the Committee requested the bill to examine the extent to which it might potentially increase both workload and state costs. The bill has the potential to create significant fiscal pressure on the State in the following ways: (1) increased litigation, leading to higher costs to DIR, and (2) increased PD costs for the State of California as a direct employer.

-- END --

SENATE COMMITTEE ON LABOR, PUBLIC EMPLOYMENT AND RETIREMENT

Senator Jerry Hill, Chair

2019 - 2020 Regular

Bill No: SB 731 Hearing Date: April 24, 2019

Subject: Workers’ compensation: risk factors

KEY ISSUE

Should the Legislature prohibit the reduction (or apportionment) of permanent disability benefits on the basis of race, religious creed, color, national origin, age, gender, marital status, sex, sexual identity, sexual orientation, or genetic characteristics?

ANALYSIS

Existing law:

1. Establishes a workers’ compensation system that provides benefits to an employee who suffers from an injury or illness that arises out of and in the course of employment, irrespective of fault. This system requires all employers to secure payment of benefits by either securing the consent of the Department of Industrial Relations to self-insure or by securing insurance against liability from an insurance company duly authorized by the state.
2. Requires that, if an occupational injury results in a permanent disability, the percentage of disability to total disability shall be determined, and the disability payment computed on the basis of the percentage of disability to total disability. (Labor Code §4658)
3. Requires that, when doctors are determining the nature and severity of an occupational injury, the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition) must be used to measure physical impairment and determine an injured worker’s whole person impairment (WPI). (Labor Code §4660.1)
4. Creates the Permanent Disability Ratings Schedule (PDRS), which increases the WPI by 40% and adjusts for occupation and age to calculate a percentage of permanent disability (PD), also known as a PD rating. (Labor Code §4660.1)
5. Requires that any physician who prepares a report addressing the issue of permanent disability include an apportionment determination, where the physician determines what approximate percentage of the permanent disability was caused by other factors, including prior industrial injuries. (Labor Code §4663)
6. Requires workers’ compensation law to be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment. (Labor Code §3202)

This bill:

1. Prohibits the consideration of race, religious creed, color, national origin, age, gender, marital status, sex, sexual identity, sexual orientation, or genetic characteristics in the development of an apportionment declaration.
2. Makes legislative findings and declarations on the need to eliminate bias and discrimination in the workers’ compensation system.

COMMENTS

1. What is Apportionment?

Under existing law, every time a doctor prepares a report on if a claimed workplace injury is permanently disabling, the physician must determine causation AND what percentage of the injury is due to non-occupational issues, including prior workplace injuries. An injured worker’s PD award is then adjusted down by this percentage. Only a physician can determine if apportionment is appropriate and to what degree.

This makes apportionment a uniquely provocative policy. On one hand, it would be difficult to defend requiring an employer to provide PD awards for an injury that is unrelated to work or occurred at another place of employment. This is why language limiting PD awards to only cover the consequences of a workplace injury has been in law since 1917. While the current apportionment statute dates back to 2004, the idea behind it is nearly a century old.

On the other hand, determining what percentage of an injury is or is not occupational is highly dependent on the judgment of the physician. Workers’ Compensation Appeals Board (WCAB) case law provides that an apportionment finding is only valid if the physician’s medical opinion:

1) Framed in terms of reasonable medical probability;

2) Not speculative;

3) Based on pertinent facts and on an adequate examination;

4) Sets forth the reasoning in support of its conclusion; and

5) Explains how and why the apportionable factor is responsible for the disability.

(See Escobedo v. Marshalls, (2005) 70 Cal. Comp. Cases 604)

Despite this case law, sometimes physicians fail to meet these requirements when making an apportionment determination. Apportionment determinations by QMEs (Qualified Medical Evaluator) are and will be a cause and source of litigation in workers’ compensation system.

One final note on apportionment: the apportioning of a PD award has no impact on the ability of an injured worker to receive medical care. Even in the event that a PD award is apportioned to 0%, the worker has a right to medical care if the injury arises or occurs in the course of employment (See Employers Mutual Liability Ins. Co. of Wisconsin v. Industrial Acc. Com. (Gideon) (1953) 41 Cal.2d 676 and Reyes v. Hart Plastering (2005) 70 Cal.Comp.Cases 223).

1. City of Jackson and Apportionment:

The issue of genetics in apportionment decisions recently came to the fore in City of Jackson v. WCAB (Rice), (2017) 11 Cal.App.5th 109. In City of Jackson, a QME (based on “family history”) apportioned a peace officer’s permanent disability award. The WCAB found this apportionment to be impermissible, as apportioning on the basis of immutable factors is impermissible, and returned the case to the local board for a new unapportioned award of permanent disability. However, the WCAB also found that apportionment based on specific, identifiable factors is permissible.

On appeal, however, the Court found that, not only was apportionment based on genetics permitted, it had been appropriately done by the QME. Specifically, City of Jackson cited three past precedents (Escobedo, Kos, and Acme Steel) to support the notion that apportionment based on genetics has been present in the workers’ compensation system since 2004. After the CA Supreme Court declined to hear City of Jackson in August of last year, it became settled law.

In response to stakeholder concerns about a potential broad reading of City of Jackson, Senator Bradford (and later Senator Pan) authored SB 899. After significant negotiation, stakeholders reached an agreement to exclude race, gender, and national origin from any apportionment decision. This agreement removed all opposition and brought in significant support from workers’ compensation stakeholders. Despite this unprecedented level of cooperation and support, Governor Brown vetoed SB 899.

1. SB 731 and Acme Steel, Kos, & Escobedo:

As discussed above, last year’s SB 899 would have prohibited the inclusion of race, gender, or national origin in an apportionment determination. However, in keeping with prior case law, the bill permitted the inclusion of genetics as an apportionable factor if the genetic is specific and identifiable. This is keeping with three of the primary cases in apportionment law: Acme Steel, Kos, & Escobedo.

In Acme Steel v. WCAB (2013) 218 Cal.App.4th 1137, the Court ruled that it was permissible to apportion a worker’s PD award for hearing loss due to genetic deterioration of the cochlea, as the QME was able to establish the non-industrial portion of the hearing loss through diagnostic tests. Similarly, in Kos v. Workers’ Comp.Appeals Bd (2008) 73 Cal.Comp.Cases 529 and Escobedo v Marshalls (2005) 70 Cal.Comp.Cases 604, an MRI and an MRI with X-Rays, respectively, were able to establish grounds for specific, individualized apportionment to genetic factors.

SB 731 would overturn this precedential case law by prohibiting the use of genetics in apportionment determinations, which may make any apportionment determination virtually impossible.

Noting the impact of upsetting longstanding case law, as well as generating significant uncertainty in what would constitute permissible apportionment, the Committee may wish to amend SB 731 to reflect the final version of SB 899 from 2018.

1. Proponent Arguments:

The California Applicants' Attorneys Association, the sponsors of SB 731, argue the following:

“Unfortunately, bias and discrimination is deeply embedded in California's workers' compensation system. SB 731 would be an important step in addressing this intolerable and unjust situation.

California is proud to be a state with so much diversity. People of different races, religions, colors, national origins, ages, genders, marital status, sexual identity, sexual orientation, and genetics constitute the fabric of this great state's workforce. Our organization represents the most injured workers in the state and we know that these hardworking people are not always treated equally and fairly.

The single mom whose workers' compensation benefits for carpal tunnel syndrome are reduced by 30% because she's a woman. The African-American man whose permanent disability benefits for hypertension are cut in half by a judge because of his race. Government Code Section 11135 prohibits discrimination on the basis of various immutable characteristics such as sex, race, color, national origin, age, sexual orientation or genetic information. But in the recent City of Jackson v. WCAB case, the Justices ordered a 49% reduction in permanent disability benefits because of Mr. Rice's immutable characteristics of genetics and heredity.

This conflict between code section and case law must be resolved by the Legislature. SB 731 will: 1) nullify the discriminatory City of Jackson decision; 2) clarify the application of Government Code Section 11135 in the state's workers' compensation system; and 3) explicitly prohibit the reduction of workers' compensation benefits on the basis of immutable characteristics including race, gender and genetic makeup.

For all these reasons, CAAA supports SB 731 (Bradford).”

1. Opponent Arguments:

The California Association of Joint Powers Authorities, California State Association of Counties (CSAC), League of Cities, California Chamber of Commerce, and California Coalition on Workers’ Compensation oppose/support if amended SB 731, arguing the following:

“On behalf of the above organizations, we have a position of SUPPORT IF AMENDED to SB 731, as introduced February 20, 2019, which among other things, prohibits consideration of race, religious creed, color, national origin, age, gender, marital status, sex, sexual identity, sexual orientation, or genetic characteristics, for the purposes of apportionment of permanent disability (PD).

Last year, our organizations and others participated in extensive stakeholder meetings on the issues posed by SB 731. The outcome was an unopposed bill with broad industry support for SB 899 (Pan) which stated that apportionment of PD cannot be based on race or other specified factors. We respectfully request consideration that SB 731 be amended to align with the language of SB 899 that was sent to Governor Brown last year.

Labor Code Section 4663 requires that an evaluating physician’s “report must include an apportionment determination”. The section goes on to state the physician’s obligation to address “what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury”. In other words, employers should only be responsible for the disability caused by the industrial injury.

Contrary to longstanding legal precedents, the City of Jackson vs. WCAB (Rice) case touched on genetics as a basis for reducing PD awards which appropriately raised concerns that correlation and risk factors of genetics could be used as a basis for reducing PD benefits. That is in contrast to existing law on appropriate apportionment that requires causation includes diagnosable pathology or factors the particular injured worker actually has, as opposed to what they might be at risk for.

We believe the language previously included in SB 899 is more appropriate language to further clarify existing law, which prohibits discrimination in providing workers’ compensation benefits. The language would ensure that any apportionment that involves race, religious creed, color, national origin, age, gender, marital status, sex, sexual identity, sexual orientation, or genetic characteristics is not done on those bases, considering what someone may have, but rather on specific diagnosable pathology or factors they actually have.

We look forward to continuing the conversation on how to ensure injured workers have appropriate medical treatment and compensation.”

1. Prior Legislation:

SB 899 (Pan) of 2018 would have explicitly excluded race, gender, and national origin as apportionable factors. SB 899 was vetoed by Governor Brown.

SUPPORT

California Immigrant Policy Center

California Applicants’ Attorneys Association

OPPOSITION

Acclamation Insurance Management Services

Allied Managed Care

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