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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