BILL ANALYSIS SENATE COMMITTEE ON Public Safety Senator Bruce McPherson, Chair S 2003-2004 Regular Session B 1 4 3 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 (More) SB 1431 (Speier) Page 2 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 - (More) SB 1431 (Speier) Page 3 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 (More) SB 1431 (Speier) Page 4 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 (More) SB 1431 (Speier) Page 5 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 (More) SB 1431 (Speier) Page 6 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. (More) SB 1431 (Speier) Page 7 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 (More) SB 1431 (Speier) Page 8 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 (More) SB 1431 (Speier) Page 9 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 (More) SB 1431 (Speier) Page 10 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 (More) SB 1431 (Speier) Page 11 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. (More) SB 1431 (Speier) Page 12 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 (More) SB 1431 (Speier) Page 13 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. (More) 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 (More) SB 1431 (Speier) Page 15 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. ***************