BILL ANALYSIS
SB 1400
Page 1
Date of Hearing: June 15, 2004
Counsel: Heather Hopkins
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
SB 1400 (Romero and Speier) - As Amended: June 9, 2004
SUMMARY : Provides that the California Department of
Corrections (CDC) shall adopt regulations to address the "Code
of Silence". Specifically, this bill :
1)States various legislative findings and declarations regarding
employee investigations and the disciplinary process in the
CDC.
2)Provides that CDC shall adopt regulations to govern the
process by which allegations of employee misconduct are
investigated and pursued. These regulations shall, to the
extent possible, meet various specified objectives regarding
the reporting of misconduct, investigations of misconduct, and
disciplinary action.
3)Provides that CDC shall incorporate provisions, as specified,
to eliminate the "Code of Silence".
4)Provides that CDC shall incorporate provisions to improve the
integrity, quality, and timeliness of investigations, as
specified, including, but not limited to, the following:
a) Implement an Office of Independent Review within the
Office of the Inspector General (OIG).
b) Conduct an overall operational review of the Office of
Investigative Services (OIS), which shall evaluate and
recommend changes, as specified. Provides for specified
changes in practices that shall be implemented.
c) Make various changes in the way OIS investigates,
protects its investigators, manages cases, provides case
assistance, and trains its agents.
d) Bring in outside expert assistance to develop and
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implement necessary and discretionary changes.
e) Make changes in the CDC Employment Law Unit, as
specified.
f) Implement a vertical prosecution system, as specified.
g) Specify policies and procedures regarding vertical
prosecution, settlements, Skelly hearing requirements,
employees testifying as expert witnesses and writs and
appeals.
h) Improve the hiring and training of people who work in
the disciplinary processes for employees of the CDC, as
specified.
5)Provides that CDC shall incorporate provisions to assure the
implementation, monitoring, and continual assessment of the
effectiveness of its efforts under Chapter 2.5 of the Penal
Code, as specified.
EXISTING LAW :
1)Creates the CDC with a director appointed by the Governor; the
director may prescribe and amend rules and regulations for the
administration of the prisons and for the administration of
the parole, as specified. (Penal Code Section 5058.)
2)Creates the independent Office of the Inspector General (OIG)
for the Youth and Adult Correctional Agency (YACA) and
includes within the duties of that office that upon receiving
a complaint of retaliation from an employee, the Inspector
General may commence an investigation, as specified, and
further provides that:
a) Upon authorization of the complainant employee, the
Inspector General may release the findings of the
investigation of alleged retaliation to the State Personnel
Board for appropriate action.
b) Any employee at any rank and file, supervisory, or
managerial level, who intentionally engages in acts of
reprisal, retaliation, threats, coercion, or similar acts
against another employee shall be disciplined by adverse
action as specified. (Penal Code Section 6129.)
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3)Provides that peace officer or custodial officer personnel
records and records maintained by any state or local agency
involving citizen's complaints are confidential but allows a
department or agency that employs peace or custodial officers
to disseminate data regarding the number, type, or disposition
of complaints (sustained, not sustained, exonerated, or
unfounded) made against its officers if that information is in
a form which does not identify the individuals involved.
(Penal Code Section 832.7.)
4)Establishes the Public Safety Officers Procedural Bill of
Rights Act, specifying the procedures to be followed whenever
any public safety officer is subject to investigation and
interrogation for alleged misconduct which may result in
punitive action. "Punitive action" is defined as any action
which may lead to dismissal, demotion, suspension, reduction
in salary, written reprimand, or transfer as punishment.
(Government Code Section 3300, et seq.)
5)Provides that no punitive action, nor denial of promotion on
grounds other than merit, shall be taken without the
opportunity for an administrative appeal. Details of the
administrative appeal are left to the employing agency.
(Government Code Section 3304.)
6)Provides that no actions shall be taken against an officer
unless an investigation under the Public Safety Officers
Procedural Bill of Rights Act is completed within one year,
with exceptions for specified circumstances such as if there
is an ongoing criminal investigation into the same events or
if more than one employee is involved and a reasonable time
extension is needed. (Government Code Section 3304.)
7)Establishes the California Whistleblower Protection Act which
provides protections against retaliation, as defined, for
good-faith disclosure - or cooperation in investigations of -
improper governmental activity. (Government Code Section
8547, et seq.)
8)Establishes the Whistleblower Protection Act - provides
protections against retaliation, as defined, for good-faith
disclosure of improper governmental activities to the
Legislature. (Government Code Section 9149.20 to 9149.23.)
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FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The need for
this bill was demonstrated this month when OIS nearly blew the
statute of limitations in the investigation of two parole
agents accused of destroying evidence. It took extraordinary
efforts to alert CDC officials that the statute of limitations
had not yet expired and that adverse action could still be
taken against the parole agents. This case underscores what
we have known for some time: the investigative and
disciplinary processes within the CDC are in serious
disrepair. Pelican Bay Special Master John Hagar has found
that CDC officials at the highest level are unwilling or
unable to investigate and discipline serious abuses of force
by correctional officers. Hagar also found systemic problems
within CDC's investigations, including an inaccurate and
unreliable management reporting system, ineffective oversight
of regional offices, inadequate staff training, an inadequate
case tracking system, and no approved policy manual for OIS
agents. In response to Hagar's draft report, CDC submitted to
Federal Judge Thelton Henderson a remedial plan that addresses
several issues, including the Code of Silence, training for
OIS agents, and "real time" oversight of OIS investigations.
By codifying the remedial plan, as this bill does, the
Legislature has proper oversight authority to ensure that CDC
implements this plan. Furthermore, this bill will greatly
improve the quality of OIS investigators and their
investigations and help restore the integrity of a tarnished
department."
2)2004 Hearing on Investigating Correctional Employees : On
January 21, 2004, the Senate Select Committees on Government
Oversight and the California Correctional System held a
hearing. One of the witnesses was Secretary Roderick Q.
Hickman, whose testimony included the following:
" . . . [T]here are fundamental problems with investigations
throughout the department, and that I am working aggressively
to correct them. . . . We are going back to the basics.
First, we are re-defining the mission: what do we want an
internal affairs investigator to do? how aggressively should
the employment law unit pursue administrative discipline
cases? We are clarifying investigator's missions and
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developing the necessary training as part of the program
development.
"My first week in office I ordered an agency wide operational
review of the investigations process within the youth and
adult correctional agency. . . . This review will include
the operational review of the employment law units . . . .
"I have directed staff to develop a comprehensive plan. It
will be a master plan for addressing the problems. A part of
the process will include outside evaluation. I am moving
forward to implement this plan with the intent to be
operational within a few months. Equally, I was disheartened
that previous actions had not been taken to address the
shortcoming in the current process . . . .
"As peace officers, we must conduct ourselves with the utmost
integrity. Under my leadership, any wrongdoing or persons
involved in the 'Code of Silence' will not be tolerated.
Misconduct will be dealt with strongly and appropriately. We
will hold each person accountable for his or her conduct, no
matter what position he or she holds.
"I will advise leadership staff of all YACA, boards, and
departments of their responsibility to establish systems and
an environment that allows employees to report misconduct.
All employees need to understand that if they fail to report
misconduct, they become willing accomplices to the misconduct
and are subject to discipline or prosecution, if appropriate.
"We will enforce sanctions for any one who violates the
policy, regardless of the position they hold within the
organization. I am taking action to repair a flawed system
that has been ignored and open for exploitation.
"Let me share with you what I believe are the critical
components of an investigative policy: impartial, fair
treatment for inmates, wards, staff, and the public; timely,
objective, equitable, and thorough investigations of
misconduct allegations; appropriate accountability and
discipline for persons found guilty of misconduct regardless
of their position within the organization; appropriate
administrative oversight to ensure the integrity of the
investigative process; implementation of all corrective
action; and continual agency monitoring, oversight, and
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compliance reviews, including outside evaluations to maintain
the transparency and integrity of our operations."
3)CDC Memo to Employees Entitled "Zero Tolerance Regarding the
'Code of Silence' " : A February 17, 2004 memorandum to all CDC
employees regarding the code of silence, signed by the
then-acting CDC Director and the YACA Secretary, states in
part:
"CDC is only as strong as the values held by each of its
employees, sworn and non-sworn. How we conduct ourselves
inside our institutions and in the central office is a
reflection of those values.
"The 'Code of Silence' operates to conceal wrongdoing. One
employee, operating alone, can foster a Code of Silence. The
Code of Silence also arises because of a conspiracy among
staff to fail to report violations of policy, or to retaliate
against those employees who report wrongdoing. Fostering the
Code of Silence includes the failure to act when there is an
ethical and professional obligation to do so.
"Every time a correctional employee decides not to report
wrongdoing, he or she harms the CDC and each one of us by
violation the public's trust. As members of law enforcement,
all correctional officers must remain beyond reproach. The
public's trust in the CDC is also violated by retaliating
against, ostracizing, or in any way undermining those
employees who report wrongdoing and/or cooperation during
investigations. There is no excuse for fostering a Code of
Silence.
"Your hard-fought efforts to protect the public deserve
recognition. Recently, however, the public's trust has been
undermined by the operation of a Code of Silence within the
CDC. To correct this problem, we are taking steps to ensure
the CDC exemplifies integrity and instills pride. Part of
this effort is the immediate implementation of a
zero-tolerance policy condemning the Code of Silence. We will
not tolerate any form of silence as it pertains to misconduct,
unethical, or illegal behavior. We also will not tolerate any
form of reprisal against employees who report misconduct or
unethical behavior, including their stigmatization or
isolation.
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"Each employee is responsible for reporting conduct that
violates CDC policy. Each supervisor and manager is
responsible for creating an environment conducive to these
goals. Supervisors are responsible for acquiring information
and immediately conveying it to managers. Managers are
responsible for taking all appropriate steps upon receipt of
such information, including initiating investigations and
promptly disciplining all employees who violate departmental
policy.
"Any employee, regardless of rank, sworn or non-sworn, who fails
to report violations of policy or who acts in a manner that
fosters the Code of Silence, shall be subject to discipline up
to and including termination."
4)Governor's Independent Review Panel : On March 5, 2005, the
Governor announced that former Governor George Deukmejian will
chair an Independent Review Panel (IRP) designed to expedite
fundamental reform within California's youth and adult
correctional systems.
The IRP will investigate and make recommendations on ways to
improve practices within the adult and youth corrections
system including, but not limited to, overall organizational
structure, risk management practices and policies, personnel
and training programs, operational improvements, cost benefits
in service and program delivery, productivity and performance
enhancements, and organizational ethics and culture.
5)Federal Special Master John Hagar's Report on Pelican Bay
State Prison (PBSP) : In Special Master Hagar's report on
Pelican Bay, he included the following in his preface to his
recommendations:
"[T]he Special Master must also carefully evaluate the impact of
his recommendations on CDC operations. The failure to
investigate and discipline staff who abuse prisoners
jeopardizes institutional security. Likewise, an active code
of silence threatens inmates, honest officers, security, and
public safety. The Special Master has, over the course of
seven years, talked with numerous PBSP employees, including
recently hired correctional officers, nurses, and medical
technical assistants. The correctional officer recruits who
seek employment within the CDC do so with high expectations
and positive motives, consistent with other applicants who
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seek a career in law enforcement. The young men and women who
seek CDC employment are not taking peace officer jobs to
commit crimes or lie or cover-up the abuses of their
co-workers. Somehow, however, the rookie correctional
officers who go to work for the CDC are forced to adopt the
Code of Silence. Rather than CDC staff correcting the
prisoners, some correctional officers acquire a prisoner's
mentality: they form gangs, align with gangs, and spread the
Code of Silence. The Code of Silence is taught to new
recruits because of a longstanding CDC culture; thereafter,
good officers turn bad. The CDC has failed to address the
situation in any effective manner; indeed, the evidence
demonstrates that the Directorate turned it head when
confronted with the code of silence, especially if the
California Correctional Peace Officers Association is
involved. It cannot be emphasized too strongly that the Code
of Silence is always accompanied by corruption. It serves no
legitimate penological purpose."
6)Outside Assessment : On Page 3, Lines 27-29, this bill
requires that CDC seek an assessment of the organizational
culture of CDC, and assistance in facilitating change in that
culture. It is unclear if these assessment would be done at
the onset of the imposition of the regulations required by
this bill or if this would be a periodic event.
7)Reference to Skelly Hearing Requirements : On Page 7, Lines
10-11, this bill states that regulations should be adopted
that include policies and procedures regarding "Skelly hearing
requirements drawn up with consideration of the Pelican Bay
model." "Skelly" refers to Skelly v. State Personnel Board
(1975) 15 C.3d 194 which held that in a pretermination
hearing, a public employee is entitled, at a minimum, to a
"notice of the proposed action, the reasons therefor, a copy
of the charges and materials upon which the action is based,
and the right to respond, either orally or in writing, to the
authority initially imposing discipline." However, it is
unclear how the consideration of the Pelican Bay model would
effect the Skelly requirement, nor what the Pelican Bay model
is.
8)Does CDC Have the Authority to Implement an Office of
Independent Review (OIR) within the OIG : This bill would
require CDC to implement an OIR within the OIG. According to
the OIG's website they are the independent watch-dog for the
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state correctional system and, as such, has broad
responsibility for overseeing California's youth and adult
correctional agencies. OIG carries out that oversight through
an active program of ongoing audits, investigations, and
special reviews to identify problems and address specific
issues. Recommendations for improvement and corrective action
are provided to the Governor, the Legislature, and state
correctional administrators.
It is unclear that CDC would have the authority to do so. At a
minimum, that responsibility would be better placed with the
YACA which oversees the activities of several boards and
departments, including CDC, the Board of Prison Terms, and the
Board of Corrections. YACA is also responsible for
maintaining efficient and cohesive correctional policy among
its divisions and ensuring compliance with the law and
executive directives. The YACA Secretary is a member of the
Governor's Cabinet and advises the Governor on correctional
matters.
REGISTERED SUPPORT / OPPOSITION :
Support
California State Employees Association
Prison Law Office
Opposition
California Correctional Peace Officers Association
Analysis Prepared by : Heather Hopkins / PUB. S. / (916)
319-3744