BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Martha M. Escutia, Chair
2003-2004 Regular Session
SB 1431 S
Senators Speier and Romero B
As Amended April 26, 2004
Hearing Date: April 27, 2004 1
Penal Code; Welfare and Institutions Code 4
GMO:cjt 3
1
SUBJECT
Department of Corrections: Code of Conduct
DESCRIPTION
This bill would require the Director of the Department of
Corrections and the Director of the Youth Authority:
to adopt a code of conduct that clearly states an
employee's responsibility to report employee misconduct
and to cooperate in any law enforcement investigation;
to develop a program to ensure the protection of
employees who have reported improper conduct and who
need counseling and personal protection; and
to provide for the development and implementation of a
disciplinary matrix with offenses and associated
punishments. The disciplinary matrix would apply to all
employees of the respective department and would be
consistent statewide.
BACKGROUND
On January 21, the authors co-chaired a legislative hearing
on "Reform of How Employee Investigations Are Conducted at
Youth and Adult Correctional Facilities," at which the
current Director of the Department of Corrections, Roderick
Q. Hickman, testified. Acknowledging the problems widely
publicized before the hearing, the Director also admitted
to the department's shortcomings in instituting reforms
within the correctional system and the lack of enforcement
(more)
SB 1431 (Speier and Romero)
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of the sanctions already applicable to violations of
departmental policy. The Director stated his personal
commitment to the legislative committee and to federal
court Judge Thelton Henderson and the court-appointed
Special Master John Hagar to "develop a comprehensive
investigations process that has integrity, that is
credible, thorough, and fair."
In his special report on Pelican Bay State Prison, Special
Master Hagar stated:
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 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 the 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 Department of Corrections, in response perhaps to the
hearings held in January and the Special Master's report,
issued in February a Memorandum to all California
Department of Corrections employees titled "Zero Tolerance
SB 1431 (Speier and Romero)
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Regarding the 'Code of Silence'." The Memorandum decries
the "Code of Silence " and emphasizes that "[f]ostering the
Code of Silence includes the failure to act when there is
an ethical and professional obligation to do so?. 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."
The Pelican Bay State Prison is currently under the
watchful eyes of federal court Judge Henderson, who has
threatened to place the state prison under the court's
supervision unless reforms are instituted to address the
findings of the Special Master.
SB 1431 and SB 1400 (Romero, 2004) intend to establish by
statute some of the reforms needed to address the problems
highlighted by the Special Master's report and the hearings
held in January 2004.
CHANGES TO EXISTING LAW
Existing law establishes the Department of Corrections for
the confinement of convicted adults and the Department of
the Youth Authority for the rehabilitation of persons under
18 years who have committed certain criminal offenses.
This bill would require the directors of these two
institutions to develop and implement a "disciplinary
matrix" of offenses and associated punishments applicable
equally to all employees of each respective department.
This bill would require the directors of these two
institutions to adopt a code of conduct that shall clearly
state an employee's responsibility to report employee
misconduct and to cooperate in investigations. It would
require the code of conduct to specify the kinds of
behavior that would be prohibited.
This bill would require both directors to develop a program
to ensure the protection of employees who have reported
misconduct and who require counseling or personal
protection.
SB 1431 (Speier and Romero)
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This bill would require each warden of a prison and
superintendent of a youth facility to publish every six
months information regarding the Code of Conduct, the duty
to report misconduct, how to report misconduct, the duty to
fully cooperate during investigations, and assurances
against retaliation.
COMMENT
1. Stated need for the bill
According to the author, this bill is necessary to move
the departments quickly towards satisfying the federal
court that the state is taking care of the problems at
its correctional institutions and youth authority
facilities. With the spectre of federal receivership of
Pelican Bay State Prison looming on the horizon, all
agree that action must be taken, and taken quickly.
Therefore, the issues raised by both the Special
Master's report and the legislative hearings held in
January are being addressed by SB 1431 and SB 1400
(Romero).
2. Recent author's amendments
Author's amendments:
a. replace the language of proposed Section 5058.4 of
the Penal Code and Section 1752.5 of the Welfare and
Institutions Code with a new provision that would
require the director of each institution to develop and
implement a disciplinary matrix of offenses and
punishments that would be applicable to all of the
department's employees uniformly statewide;
b. delete the proposed language requiring each
employee to sign under penalty of perjury a code of
conduct to be adopted by the Director of the Department
of Corrections or the Department of the Youth Authority
and making the intentional failure to sign the code of
conduct grounds for termination of the employee;
c. add a new provision with language lifted from SB
1400 (Romero) requiring each warden of a prison or
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superintendent of a youth facility to publish to all
employees every six months information regarding the
Code of Conduct, the duty to report misconduct, how to
report misconduct, the duty to fully cooperate during
investigations, and assurances against retaliation.
3. SB 1431 would increase protections for employee
whistleblowers
Both the Department of Corrections and the Department of
the Youth Authority already have codes of conduct, but
apparently the codes do not clearly state the employee's
responsibility to report employee misconduct. This bill
would require that each director adopt a code of conduct
that articulates this duty clearly.
The California Whistleblower Act of 2002 protects state
employees from adverse employment action (e.g.,
suspension, demotion, change of working assignments,
termination) in retaliation for reporting conduct of
other employees or public officials that violate state
or federal law or regulation. In addition, Labor Code
Sec. 1102.5 also protects a state employee from adverse
employment actions for having been a whistleblower in
former employment or for refusing to perform an act that
is illegal or that would violate state or federal law or
regulation. Generally, employees who are whistleblowers
enjoy a higher degree of protection in California than
most other states.
Employees of the Departments of Corrections and Youth
Authority are state employees, and are protected by the
current whistleblower laws. However, as pointed out by
the Special Master's report and the legislative hearings
held in January, the "Code of Silence" pervasive in the
system has made the whistleblower protections inadequate
to encourage employees to shed light on the abuses that
are occurring in the correctional facilities.
According to the author, SB 1431 intends to increase
current protections for whistleblower employees in the
Departments of Corrections and Youth Authority by
requiring the directors to develop programs to ensure
their protection. The added protections would be
available to employees who "reported improper
governmental activities and who require counseling or
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personal protection." However, the language in the bill
is not clear as to whether the program developed by the
director must provide protections in addition to current
whistleblower protections or in stead of current
protections.
SHOULD THIS BE CLARIFIED? SHOULD THERE BE A PROVISION
STATING THAT THESE PROTECTIONS ARE IN ADDITION TO THOSE
AVAILABLE UNDER EXISTING LAW?
The bill does not specify what the added protections
would be, nor does it specify whether the "personal
protection" that would be required means protection of
their identity, or protection of their physical safety
and under what conditions.
As pointed out in the analysis by the Committee on
Public Safety, this could mean 24-hour protection or
placement of the employee in a program similar to a
witness protection program. The language of the bill
indicates the added protections would apply only to
employees who are whistleblowers and who require
counseling or personal protection. Thus, all other
departmental employees would be covered by only the
whistleblower laws applicable to all other state
employees.
IS THIS THE AUTHOR'S INTENT?
SHOULD THESE ADDED PROTECTIONS BE SPECIFIED?
4. SB 1431 requires the code of conduct to specify
prohibited behavior that would be sanctioned
a. Statute should spell out kinds of behavior that
would be sanctioned
This bill would require the director to adopt
regulations that shall clearly state an employee's
responsibility to report employee misconduct. It
would then require the director to adopt a code of
conduct that would "specify the kinds of behavior
that are prohibited."
Because the bill promises added protections to an
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employee whistleblower who reports misconduct
(rather, "improper governmental activities") it
would, hopefully, encourage more employees to come
forward and make such reports. However, because of
past experience that resulted in the code of silence
instead of a workable code of conduct, and to ensure
that employees know in advance what types of behavior
would be covered by the code of conduct, it is
recommended that the bill itself incorporate some, if
not all, of the types of behavior that would be
considered "misconduct" under the code. By doing so,
the director would have some statutory guidance about
what the regulations must address.
The author's staff informed Committee staff that, in
fact, such a list is being compiled, and the list is
expected to be ready for amendment into SB 1431 when
it reaches the Assembly.
SHOULD THE LIST OF TYPES OF CONDUCT THAT WOULD BE
SANCTIONED BE INCORPORATED INTO THE BILL (WHEN READY)
TO PROVIDE THE DIRECTORS SOME GUIDANCE?
If amended into the bill while it is in the Assembly,
the bill will need concurrence by the Senate.
b. Specifying prohibited conduct would assist the
departments in potential Skelly hearings
One of the reasons the "Code of Silence" worked to
prevent complaints of misconduct from seeing the
light of day is that employees of the Departments of
Corrections and Youth Authority, as do all civil
service employees of state agencies, have
constitutionally protected rights regarding their
employment. Skelly v. State Personnel Board (1975)
15 C.3d 194 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."
By expressly stating the type of behavior that would
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result in an adverse action under the new
disciplinary matrix to be promulgated by the
director, the departments would be ensuring that any
employee action for misconduct taken is based on
complete and actual knowledge of the prohibited
behavior by the employee. In other words, this
provision could assist the department in a Skelly
hearing when it disciplines an employee.
5. Warden or Superintendent to publish duties and rights
under the code of conduct every six months
SB 1431 would require the warden of each prison or the
superintendent of each youth facility to publish, every
six months, employee rights and duties under the code of
conduct, including the duty to report misconduct, how to
report misconduct, the duty and how to cooperate in the
investigation of a reported misconduct, and assurances of
protection for reporting misconduct.
The repeated publication of employees' responsibility to
report as well as instruction on how to report misconduct
and how to cooperate with investigations would reinforce
the reforms that are proposed in this bill and SB 1400
(Romero) (see below).
It should be noted that this every-six-month publication
would include "assurances against retaliation." It is
assumed that this means "assurances of protection against
retaliation" and that this protection involves remedies
other than those available under California's
whistleblower laws.
Because this bill would expand the protection for
whistleblowers only in these two departments, the bill
should probably include some findings and declarations to
justify why only these departments' employees would enjoy
these benefits.
SHOULD THE BILL CONTAIN FINDINGS AND DECLARATIONS TO
JUSTIFY SPECIAL PROTECTIONS FOR EMPLOYEES OF THE
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DEPARTMENT OF CORRECTIONS AND THE DEPARTMENT OF THE YOUTH
AUTHORITY?
6. SB 1400 (Romero) a companion bill to SB 1431
SB 1431 and SB 1400 are companion bills, resulting from
the legislative hearings and the federal court Special
Master's findings on the Pelican Bay State Prison.
SB 1400 would make extensive findings and declarations
relating to problems in the investigation and
disciplinary processes used by the Department of
Corrections regarding its workforce, and would require
the Department to adopt regulations to remedy various
identified aspects of these investigation and discipline
processes.
The regulations to be adopted by the Director of the
Department of Corrections, detailed in SB 1400, would
govern the process by which allegations of employee
misconduct are investigated and pursued, would eliminate
the code of silence by, for example, providing material
and training on ethics and the need to report
misconduct, create an Office of Independent Review
within the Office of the Inspector General and provide
support for investigations and review of allegations,
would eliminate the use of untrained, nonattorney
employment relations officers in presenting cases before
the State Personnel Board and provide for a vertical
prosecution system when pursuing an adverse employment
action against an employee.
Support: None Known
Opposition: None Known
HISTORY
Source: Authors
Related Pending Legislation: SB 1400 (Romero). See
Comment 4.
SB 1431 (Speier and Romero)
Page 10
Prior Legislation: None Known
Prior vote: Committee on Public Safety (Ayes 5, Noes 0).
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