BILL ANALYSIS                                                                                                                                                                                                    







                          SENATE COMMITTEE ON Public Safety
                             Senator Bruce McPherson, Chair     S
                                2003-2004 Regular Session       B

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          SB 1431 (Speier)                                      1
          As Introduced February 19, 2004 
          Hearing date:  April 20, 2004
          Penal Code and Welfare and Institutions Code
          SH:br

               CALIFORNIA DEPARTMENT OF CORRECTIONS AND YOUTH AUTHORITY

                             EMPLOYEE "CODE OF CONDUCT"  

                                       HISTORY

          Source:  Author

          Prior Legislation: None

          Support: Unknown

          Opposition:None known


                                         KEY ISSUE
           
          SHOULD THE DIRECTORS OF THE DEPARTMENT OF CORRECTIONS AND THE  
          DEPARTMENT OF THE YOUTH AUTHORITY BE REQUIRED TO ADOPT REGULATIONS  
          AND ESTABLISH POLICIES PERTAINING TO EMPLOYEE CONDUCT AND THE  
          PROTECTION OF WHISTLEBLOWERS, AS SPECIFIED.


                                       PURPOSE
          
          The purpose of this bill is to require that the Directors of the  
          Department of Corrections and the Department of the Youth  




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          Authority adopt regulations and establish policies pertaining to  
          employee conduct and the protection of whistleblowers, as  
          specified.
          
           Existing law  creates the Department of Corrections 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  5058.)

           Existing law  creates the Department of the Youth Authority with  
          a director appointed by the Governor, as specified.  (Welfare  
          and Institutions Code 1710 et seq.)

           Current law  generally authorizes juvenile courts to commit  
          juvenile offenders to the Department of the Youth Authority, as  
          specified.  (See Welfare and Institutions Code ("WIC")  731;  
          732; 733; 734; 736; 1736.)

           Existing law  creates the independent Office of the Inspector  
          General for the Youth and Adult Correctional Agency 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:

           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.

           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  6129.)

           Existing law  (the California Whistleblower Protection Act)  
          provides protections against retaliation, as defined, for good  
          faith disclosure - or cooperation in investigations of -  




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          improper governmental activity.  (Government Code  8547 et  
          seq.)

           Existing law  (the Whistleblower Protection Act) provides  
          protections against retaliation, as defined, for good faith  
          disclosure of improper governmental activities to the  
          Legislature.  (Government Code  9149.20 to 9149.23.)  
           
           This bill  requires that the director of the Department of  
          Corrections shall:

           Adopt regulations imposing a schedule of sanctions for  
            misconduct by employees, effective within 90 days of the  
            operative date of this bill.

           Adopt a code of conduct that shall clearly state, among other  
            things, an employee's responsibility to report employee  
            misconduct, and to cooperate in any investigation conducted by  
            local, state, or federal law enforcement agencies or their  
            agents.  The code of conduct shall specify the kinds of  
            behavior that are prohibited.  It shall be signed by each  
            employee under penalty of perjury annually to acknowledge that  
            the employee has read it and will abide by it.  The  
            intentional failure to sign the code of conduct shall be  
            grounds for termination of the employee.

           Develop a program to ensure the protection of employees who  
            have reported improper governmental activities and who require  
            counseling or personal protection.

           This bill  places identical provisions in the Welfare and  
          Institutions Code requiring the director of the Youth Authority  
          to do the same.

                                      COMMENTS

          1.   Need for This Bill
           
          The author's background on this bill includes the following from  
          her statement as co-chair of a hearing on "Reform of How  




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          Employee Investigations Are Conducted at Youth and Adult  
          Correctional Facilities" held in the Capitol on January 21,  
          2004.  This portion of that statement relates to elements of a  
          positive discipline system:

          I believe these are the seven key elements of a first-class  
          disciplinary system for our correctional facilities.  The  
          elements are these:

               A system free from outside influence and inside conflict of  
               interest.  This is the cornerstone element, but it needs  
               six other elements of support.

               [1]  A system staffed by competent, trained investigators  
               who know the prison work culture and the dictates of the  
               Police Officers Bill of Rights.  I don't want auditors  
               investigating correctional officers.

               [2]  A system that is built with structurally sound  
               procedures.  Unwritten procedures just don't work.

               [3]  A system that has teeth.  When wrongdoing is  
               documented, discipline will follow.  The IG's [YACA  
               Inspector General] findings sometimes entered a  
               disciplinary vacuum.  The findings didn't translate into  
               corrective action.

               [4]  A system that is transparent, where findings had not  
               shielded.  . . . have not been shielded or weakened by  
               secrecy.  There is a problem with the fact that the IG's  
               reports and findings are not subject to sunshine.

               [5]  A system that has adequate resources to succeed in our  
               new era of reduced funding.  The administration's current  
               plan for the inspector general with four investigators and  
               two support staff are not an investigative team, except for  
               television.

               [6]  A system with a code of conduct that clearly separates  
               good behavior from bad behavior.  You know, there ought to  




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               be specific prohibitions against such actions as an officer  
               calling another officer a "snitch" in front of inmates.

               If these seven elements mentioned become a reality, we will  
               have a system that I am confident would win the support of  
               everyone in this room while assuring that justice will be  
               served at all of our correctional institutions.

          2.   Hearing on Investigating Correctional Employees (January 21,  
          2004)  

          The testimony of Secretary Roderick Q. Hickman before the Senate  
          Select Committees on Government Oversight and the California  
          Correctional System (January 20, 2004), includes the following:

               At the outset, it is important that I acknowledge  
               that there are fundamental problems with  
               investigations throughout the department, and  
               that I am working aggressively to correct them.   
               I have key staff developing an improved system of  
               investigations and a review process that will  
               have integrity, both of which will be free from  
               manipulation by any improper outside influence.   
               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  
               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.   
               Martin Hoshino, formerly from the inspector  
               general's office, is conducting the review of our  




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               investigative process.  This review will include  
               the operational review of the employment law  
               units.  Mr. Hoshino is providing me with  
               recommendations for the needed improvements.

               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.  Clearly, there are actions that  
               could . . .and should . . . have been taken.  Over  
               the weekend, a newspaper quoted my predecessor as  
               saying he constantly complained about the quality of  
               investigations.  That being the case, decisive  
               action should have been taken . . . actions that I  
               intend to take during my tenure.

               . . . 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.




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               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.
               - continual agency monitoring, oversight, and  
                compliance reviews, including outside evaluations  
                to maintain the transparency and integrity of our  
                operations.

               I appreciate the opportunity Special Master Hagar  
               has given me to develop and implement an  
               investigative and employee discipline process that  
               has integrity, that is credible, and that is free of  
               improper outside influence.





          3.   Memo to Corrections Employees Regarding the "Code of  
          Silence" (February 17, 2004)
           
          A February 17, 2004, Memorandum to all California Department of  




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          Corrections employees - titled "Zero Tolerance Regarding the  
          'Code of Silence'" (signed by the then-acting Director and the  
          Secretary of the Youth and Adult Correctional Agency) states:

              The California Department of Corrections (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 our Department and  
              each one of us by violation of the public's trust.  As  
              members of law enforcement, all Correctional Officers  
              must remain beyond reproach.  The public's trust in  
              this Department 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 Department 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  




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              will not tolerate any form of reprisal against  
              employees who report misconduct or unethical behavior,  
              including their stigmatization or isolation.

              Each employee is responsible for reporting conduct  
              that violates the Department 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, 2004, 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.

              "I can think of no one more qualified to lead this  
              effort, no one with more integrity and experience than  
              Governor Deukmejian," said Governor Schwarzenegger.   
              "It has been too long since our correctional system  
              has undergone a fundamental review of its operations.   
              The mission of this inquiry team is to chart a course  
              of action to turn around the crisis of confidence in  
              California's correctional system."

              The IRP will investigate and make recommendations on  
              ways to improve practices within the adult and youth  




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              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.
              (Press release GAAS:88:04)

          Media reports indicate that the IRP plans to release a report by  
          June this year with recommendations.

          5.   Observations of the Federal Special Master for Pelican Bay  
          State Prison  

          In his statements mentioned in Comment #2, above, Secretary  
          Hickman also stated that:

            I am personally committed to federal court Judge  
            Thelton Henderson and to his special master, John  
            Hagar, to develop a comprehensive investigations  
            process that has integrity, that is credible, thorough,  
            and fair.  Equally important, the process must be free  
            from any inappropriate outside influence.

          Special Master John Hagar includes the following as a preface to  
          his recommendation in his report on Pelican Bay State Prison:

            Finally, the 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 MTAs.  The correctional officer recruits who seek  
            employment within the CDC do so with high expectations  
            and positive motives, consistent with other applicants  




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            who 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 Department has failed to  
            address the situation in any effective manner; indeed,  
            the evidence demonstrates that the Directorate turned  
            its head when confronted with the code of silence,  
            especially if the CCPOA is involved.  It cannot be  
            emphasized too strongly that the code of silence is  
            always accompanied by corruption.  It serves no  
            legitimate penological purpose.

            The Special Master is cognizant, however, that as the  
            hearings progressed the State of California's  
            recognition of the seriousness of this problem slowly  
            began to increase.

          6.   Possible Issues Raised in This Bill
           
          At the request of Committee staff, the CDC has indicated that  
          current training for new Correctional Officers as well as for  
          supervisors and managers includes ethics training.  Also covered  
          as part of that training is the expectation that staff is to  
          report incidents of staff misconduct and the Code of Silence  
          zero-tolerance policy.  Additionally, as part of the Commission  
          on Peace Officer Standards and Training Penal Code Section 832  
          peace officer training, mandatory for all California peace  
          officers is an ethics training module.  The Department is  
          increasing training in this area and the YACA Secretary now  
          covers the Code of Silence zero-tolerance policy during his  
          keynote address to all new correctional officers graduating from  
          the Basic Correctional Officer Academy.




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           Schedule of Sanctions

          This bill would require the CYA and CDC directors to adopt  
          regulations imposing a schedule of sanctions for misconduct by  
          employees.  That mandate is broad in scope.  It may be that the  
          requirement pertains only to administrative sanction which the  
          departments would impose.  Criminal prosecution also involves  
          "sanctions" which are generally broad but may be specific to  
          correctional employees.  For example, Penal Code Section 289.6  
          applies directly to any employee of the Youth and Adult  
          Correctional Agency and punishes all sexual contact with  
          inmates, wards, and parolees, punishable as an alternate  
          misdemeanor/felony.

          If this bill moves in the legislative process, it may be  
          appropriate for the author to further focus the kind of  
          misconduct which the bill could best address.  For example, the  
          focus might be on employee misconduct pertaining to inmates,  
          wards, parolees, and other staff members, such as  
          whistleblowers.

          NOTE  :  SB 1400 (Romero) - also to be heard in this Committee  
          today - requires the CDC to "Provide for the development and  
                                 implementation of a disciplinary matrix with offenses and  
          associated punishments applicable equally to all Department of  
          Corrections employees, for notice and consistency statewide."

           Code of Conduct

          This bill requires the adoption of a code of conduct and annual  
          signature under penalty of perjury each year "to acknowledge  
          that the employee has read it and will abide by it."  Perjury is  
          a felony and generally is defined as when a person "states as  
          true any material matter which he or she knows to be false, and  
          every person who testifies, declares, deposes, or certifies  
          under penalty of perjury in any of the cases in which the  
          testimony, declarations, depositions, or certification is  
          permitted by law of the State of California under penalty of  
          perjury and willfully states as true any material matter which  




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          he or she knows to be false, is guilty of perjury."  [See Penal  
          Code Sections 118 and 126.  Also, Penal Code Section 118.1 makes  
          is a crime punishable as an alternate misdemeanor/felony for a  
          peace officer to file a false report.]

          It may be that a person would fail to "abide by" the Code of  
          Conduct but that the violation itself would generally involve an  
          administrative sanction while the failure to abide would  
          potentially be punishable as a felony.  That might not be a  
          problem if the person who signed the code of conduct did not  
          actually make a knowing false statement at the time of  
          signature.
































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          WOULD IT BE APPROPRIATE TO DELETE THE FELONY PENALTY FOR  
          SIGNING THE CODE OF CONDUCT AND INSTEAD REQUIRE ACKNOWLEDGMENT  
          EACH YEAR - OR AT SOME LONGER INTERVAL OF TIME - OF THE CODE OF  
          CONDUCT AND TO SIMPLY ALLOW WHATEVER SANCTION APPLIES TO THE  
          "FAILURE TO ABIDE" OR FOLLOW THE CODE OF CONDUCT RATHER THAN  
          POTENTIALLY BOOTSTRAP A POTENTIAL FELONY PENALTY FOR ARGUABLY  
          LESS THAN FELONIOUS BEHAVIOR?

          This bill also provides that the intentional failure to sign the  
          code of conduct shall be grounds for termination of the  
          employee.  It does not require that the employee be terminated  
          but may arguably be a disproportionate penalty in some  
          circumstances.



          In addition, Article 20, section 3 of the California  
          Constitution requires legislators, judges, and others to take an  
          oath of office but that "no other oath, declaration, or test,  
          shall be required as a qualification for any public office or  
          employment."  Whether or not that prohibition on other  
          declarations would proscribe the "grounds for termination" is  
          not clear to Committee staff but the author may wish to clarify  
          that potential issue.

           NOTE  :  SB 1400 (Romero) - also to be heard in this Committee  
          today - contains specific requirements for the CDC's Code of  
          Conduct, including content and dissemination.  SB 1400 also  
          requires ". . . all academy cadets and other new law enforcement  
          agents to sign the Code of Ethics for placement in their  
          personnel files."

           Whistleblowers:  Counseling and Personal Protection
           
           This bill requires that the CYA and CDC directors shall develop  
          a program to ensure the protection of employees who have  
          reported improper governmental activities and who require  
          counseling or personal protection.  The protection required by  
          this bill could arguably be anything from 24-hour security  




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          protection to a program analogous to the Department of Justice  
          witness protection program or something similar to the  
          relocation of peace officers program in Penal Code Section  
          832.9.  If this bill moves in the legislative process, it may be  
          appropriate to further refine and focus the kinds of protection  
          which this bill would require.

          For example, the CYA and CDC may or may not know that an  
          employee has reported improper conduct by another employee and  
          would not likely know at all if the reported activity involves  
          another state agency altogether.  Thus it might be appropriate  
          to add some language about the activity involving the employing  
          agency and at the request of the employee.

          7.   Staffing at the CYA and the CDC  

          In the CDC Facts for the First Quarter of 2004, indicates the  
          following pertaining to CDC staffing:  "49,247 currently  
          employed including 42,365 in Institutions, 3,092 in Parole, and  
          3,607 in Administration (about 32,539 sworn peace officers)."

          The CYA Web site indicates a staff total of approximately 4,700  
          but does not indicate the number of sworn peace officers.

          8.   Double-referral to the Senate Judiciary Committee  

          This bill is double-referred to the Senate Judiciary Committee  
          and will be referred to that Committee upon passage from this  
          Committee.



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