BILL NUMBER: SB 807 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 16, 2012
AMENDED IN SENATE JUNE 13, 2011
INTRODUCED BY Senators Correa and Lieu
FEBRUARY 18, 2011
An act to amend Section 20636 of the Government Code,
relating to retirement, and declaring the urgency thereof, to take
effect immediately. An act to amend Sections 142, 148,
161, 162, 164.1, and 166 of, to add Section 141.5 to, and to repeal
Section 167 of, the Military and Veterans Code, relating to the state
militia.
LEGISLATIVE COUNSEL'S DIGEST
SB 807, as amended, Correa. Retirement: compensation
earnable. State militia.
Existing law provides that the Governor is the Commander in Chief
of the Militia of the State. Existing law authorizes the Governor to
order the active militia or any portion of the militia to perform
military duty of every description, as described.
This bill would specify that the state active duty force consists
of service members in active state service when ordered by the
Governor. This bill would specify and revise conditions for state
active duty for service members, as provided, and would authorize the
Adjutant General to promulgate regulations in conformity with these
provisions.
Existing law authorizes the Governor to make rules and regulations
in conformity with the Military and Veterans Code that conform as
nearly as practicable to those governing the United States Army,
United States Air Force, and United States Navy.
This bill would instead require the Governor to direct the
Adjutant General to make those rules and regulations.
Existing law specifies the membership of the office of the
Adjutant General, including one officer who may be of the rank of
brigadier general who is the Assistant Adjutant General. Existing law
specifies that the Assistant Adjutant General is subordinate only to
the Governor and the Adjutant General, and specifies 2 officers who
may be of the rank of brigadier general, one of whom is the Deputy
Adjutant General, Army Division and the other who is the Deputy
Adjutant General, Air Division.
This bill would revise the ranks of officers in that office, by
providing instead for one officer who may be of the rank of brigadier
general who is the Deputy Adjutant General, and would require his or
her duties to be assigned by the Adjutant General. This bill would,
with regard to the Deputies Adjutant General, described above,
provide for 2 officers who may be of the rank of brigadier general,
one who is the Assistant Adjutant General, Army Division and the
other who is the Assistant Adjutant General, Air Division. This bill
would also specify one officer who is the Chief of Staff and Director
of the Joint Staff.
Existing law requires the Governor to appoint the Adjutant
General. Existing law provides that the Adjutant General receives the
same pay and allowances as received by a lieutenant general in the
Army of the United States.
This bill would require the Governor to appoint the Adjutant
General on state active duty in the grade of lieutenant general, and
would make conforming changes to that provision relating to the pay
and benefits of the Adjutant General.
Under existing law, in the event of the absence of the Adjutant
General or of his inability to perform his duties, the officer
designated by the Adjutant General or the senior officer in the
Adjutant General's office performs those duties.
This bill would instead specify that those duties are to be
performed by the Deputy Adjutant General or other officer designated
by the Adjutant General.
The Public Employees' Retirement Law (PERL) establishes the Public
Employees' Retirement System, which is administered by its board of
administration, and which provides a defined benefit to its members
based on age at retirement, service credit, and final compensation.
PERL defines compensation earnable, for purposes of calculating a
member's retirement allowance, as the member's payrate and special
compensation. PERL specifically excludes from payrate and special
compensation for state members any compensation for additional
services outside regular duties, such as standby pay, callback pay,
court duty, allowance for automobiles, and bonuses for duties
performed after the member's regular work shift.
This bill would additionally exclude from payrate and special
compensation for state members any allowance for travel expenses or
housing.
This bill would declare that it is to take effect immediately as
an urgency statute.
Vote: 2/3 majority . Appropriation:
no. Fiscal committee: yes. State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature hereby finds and
declares all of the following:
(a) The full-time state militia provides California with a
well-trained state military force that plays an integral role in the
state's emergency management system. The Governor, as Commander in
Chief, commands all state military forces through the Adjutant
General. California law requires the Adjutant General to command the
state military for civil support, the California Cadet Corps, Youth
Programs, and Funeral Honors Programs. In addition, the Adjutant
General commands state military forces in military civil support when
the public's safety is jeopardized because of manmade or natural
disasters. The full-time state military force provides California
with military capabilities used to prepare for, respond to, and
recover from the effects of emergencies regardless of cause, size,
location, or complexity. The state militia is comprised of federally
trained California National Guard and experienced State Military
Reserve service members who are capable of immediately employing
resources to save lives, prevent human suffering, or mitigate great
property damage within the State of California.
(b) State active duty plays an important role in the national
response framework. Under the 10th Amendment to the United States
Constitution, national emergency response frameworks recognize that
state forces have primary responsibility for providing military
support to state and local authorities in emergencies. National Guard
civil support refers to support provided to civil authorities for
domestic emergencies and for designated law enforcement and other
duties by the National Guard while in state active duty or while
having the status described in Title 32 of the United States Code.
State active duty military forces and National Guard forces conduct
all missions in accordance with the needs of the state and within the
guidelines of state laws. Because the National Guard continuously
builds relationships with its civilian counterparts, when National
Guard forces arrive to support an incident response, they usually
integrate with first responders very quickly.
SEC. 2. Section 141.5 is added to the
Military and Veterans Code , to read:
141.5. The state active duty force consists of service members in
active state military service when ordered by the Governor in
accordance with this code.
SEC. 3. Section 142 of the Military and
Veterans Code is amended to read:
142. (a) The Governor may order the active
militia or any portion thereof of it to
perform military duty of every description, including necessary
administrative duties, and to participate in small arms gunnery
competitions in this State state or in
any other state or territory or the District of Columbia, or in any
fort, camp, or reservation of the United States. He or she
may also authorize the performance of military duty or participation
in small arms or gunnery competitions by any part of the active
militia anywhere without the State state
or without the United States. Cruise duty ordered for the Naval
Militia may be required to be performed on United States vessels.
(b) An order to state active duty under this section for
assignments of less than six years shall be based on using the most
qualified service member for the assignment. A service member's
orders shall expire annually unless renewed or the service member is
separated for cause.
(c) A service member ordered to state active duty in accordance
with this section who remains on state active duty for a cumulative
total of six years shall be eligible for the career state active duty
system and may remain on state active duty until the service member
reaches 60 years of age or is separated for cause. At 60 years of
age, a service member's orders shall be temporary and may be renewed
annually.
(d) When a service member reaches 64 years of age, or when federal
recognition of his or her grade or rank is withdrawn, whichever
occurs later, the service member shall be retired from state active
duty.
(e) A new service member ordered to state active duty on or after
January 1, 2013, with the Military Department pursuant to this
section shall be a current member of the California National Guard,
retired or otherwise honorably separated from federal active military
or California National Guard service with current membership in the
State Military Reserve, or be a current member of the State Military
Reserve with a minimum of two years of state service. Service members
on state active duty who retire federally from the California
National Guard shall be automatically assessed into the State
Military Reserve.
(f) A commissioned officer on state active duty assigned to a
general officer position who, previous to that duty, held a state
active duty position at a lower grade may revert to the grade last
held upon vacation of the general officer position, if a position is
available.
(g) Notwithstanding any other law, a service member who is on
state active duty may be relieved from state active duty if the
Adjutant General, acting in good faith and on behalf of the Governor,
abolishes a position and assigns duties elsewhere.
(h) The Adjutant General, under the authority of the Governor as
Commander in Chief, shall promulgate regulations in conformity with
this section.
SEC. 4. Section 148 of the Military and
Veterans Code is amended to read:
148. The Governor may shall direct the
Adjutant General to make rules and regulations in conformity
with this code which shall conform as nearly as practicable to those
governing the United States Army, United States Air Force ,
and United States Navy. Such The
rules and regulations shall have the same force and effect as the
provisions of this code.
A finding by the Governor that it is impracticable to conform
rules and regulations to those governing the United States Army,
United States Air Force , or United States Navy shall be
conclusive and such the rules and
regulations shall have force and effect over inconsistent rules,
regulations, directives, manuals , or practices governing
any of the armed forces Armed Forces of
the United States.
SEC. 5. Section 161 of the Military and
Veterans Code is amended to read:
161. The Within the Military Department,
the office of the Adjutant General consists of one officer of
the rank of lieutenant general who is the Adjutant General, one
officer of the rank of brigadier general who is the
Assistant Deputy Adjutant General, one officer
who may be of the rank of brigadier general who is the
Deputy Assistant Adjutant General, Army
Division, one officer who may be of the rank of brigadier general who
is the Deputy Assistant Adjutant
General, Air Division, one officer who may be of the rank of
brigadier general who is the Deputy Adjutant General, Joint
Staff Division Chief of Staff and Director of the
Joint Staff , and other officers as are prescribed by the laws
or regulations of the United States. No person is eligible for
appointment as the Assistant Deputy
Adjutant General unless he or she had not less than a total of five
(5) years of commissioned service in the National
Guard of the United States, of which at least three (3)
years shall be service as a field grade officer in the
California National Guard within the preceding 10-year period prior
to the date of appointment and of which at least three (3)
years shall have been in command of Army
army or air troops at the battalion or equivalent or
higher command level or three (3) years as a staff
officer at brigade or equivalent or higher staff level. The
Assistant Deputy Adjutant General is
subordinate only to the Governor and the Adjutant General and
shall have his or her duties assigned by the Adjutant General .
SEC. 6. Section 162 of the Military and
Veterans Code is amended to read:
162. The Adjutant General shall be appointed by the Governor with
the advice and consent of the Senate, and shall hold office at the
pleasure of the Governor, or until his successor is appointed and has
qualified.
162. The Governor, as Commander in Chief, shall
appoint the Adjutant General, who shall be on state active duty, in
the grade of lieutenant general, with the advice and consent of the
Senate, and that person shall hold office at the pleasure of the
Governor, or until his or her successor is appointed and
has qualified. No person is eligible for appointment as
Adjutant General unless he or she had not less than a
total of ten (10) 10 years of
commissioned service in the National Guard of the United States, of
which at least four (4) years shall be service as
a field grade officer in the California National Guard within the
preceding 10-year period prior to the date of appointment and of
which at least four (4) years shall have been in
command of army or air troops at the battalion or equivalent or
higher command level or four (4) years as a staff
officer at brigade or equivalent or higher staff level.
SEC. 7. Section 164.1 of the Military
and Veterans Code is amended to read:
164.1. The Adjutant General shall be paid the same pay
and allowances as is received by receive the same pay
and benefits pursuant to Section 320 as a lieutenant general in
the Army of the United States and shall be paid in the same manner
and at the same time as other state officers.
SEC. 8. Section 166 of the Military and
Veterans Code is amended to read:
166. In the event of the absence of The
the Adjutant General or of his or her inability to
perform his or her duties, the officer
Deputy Adjutant General or other officer designated by
The the Adjutant General or
the senior officer in The Adjutant General's office shall
perform the duties of The the Adjutant
General. In the event of the absence or inability of such
those officers , the Governor may
detail a National Guard officer to perform such
those duties.
SEC. 9. Section 167 of the Military and
Veterans Code is repealed.
167. (a) All commissioned and warrant officers and enlisted
personnel on permanent active duty with the Office of the Adjutant
General shall be appointed by the Governor, with consideration of the
recommendation of the Adjutant General and, except for the Adjutant
General, the Assistant Adjutant General, and officers assigned to
general officer positions, may remain on active duty with the office
either until age 60 or until federal recognition of grade or rank as
a member of the California National Guard is withdrawn, whichever
occurs later.
(b) If the commission of an officer on active duty with the office
is vacated pursuant to Section 232, if a warrant officer on active
duty with the office is discharged pursuant to Section 225, or if an
enlisted person on active duty with the office is discharged under
proper authority, the provisions of subdivision (a) regarding
retention until age 60 do not apply.
(c) A commissioned officer on active duty with the office assigned
to a general officer position who, previous to that duty, held a
permanent active duty position in the office at a lower grade may
revert to the permanent grade last held upon vacation of the general
officer position.
SECTION 1. Section 20636 of the Government Code
is amended to read:
20636. (a) "Compensation earnable" by a member means the payrate
and special compensation of the member, as defined by subdivisions
(b), (c), and (g), and as limited by Section 21752.5.
(b) (1) "Payrate" means the normal monthly rate of pay or base pay
of the member paid in cash to similarly situated members of the same
group or class of employment for services rendered on a full-time
basis during normal working hours, pursuant to publicly available pay
schedules. "Payrate," for a member who is not in a group or class,
means the monthly rate of pay or base pay of the member, paid in cash
and pursuant to publicly available pay schedules, for services
rendered on a full-time basis during normal working hours, subject to
the limitations of paragraph (2) of subdivision (e).
(2) "Payrate" shall include an amount deducted from a member's
salary for any of the following:
(A) Participation in a deferred compensation plan.
(B) Payment for participation in a retirement plan that meets the
requirements of Section 401(k) of Title 26 of the United States Code.
(C) Payment into a money purchase pension plan and trust that
meets the requirements of Section 401(a) of Title 26 of the United
States Code.
(D) Participation in a flexible benefits program.
(3) The computation for a leave without pay of a member shall be
based on the compensation earnable by him or her at the beginning of
the absence.
(4) The computation for time prior to entering state service shall
be based on the compensation earnable by him or her in the position
first held by him or her in state service.
(c) (1) Special compensation of a member includes a payment
received for special skills, knowledge, abilities, work assignment,
workdays or hours, or other work conditions.
(2) Special compensation shall be limited to that which is
received by a member pursuant to a labor policy or agreement or as
otherwise required by state or federal law, to similarly situated
members of a group or class of employment that is in addition to
payrate. If an individual is not part of a group or class, special
compensation shall be limited to that which the board determines is
received by similarly situated members in the closest related group
or class that is in addition to payrate, subject to the limitations
of paragraph (2) of subdivision (e).
(3) Special compensation shall be for services rendered during
normal working hours and, when reported to the board, the employer
shall identify the pay period in which the special compensation was
earned.
(4) Special compensation may include the full monetary value of
normal contributions paid to the board by the employer, on behalf of
the member and pursuant to Section 20691, if the employer's labor
policy or agreement specifically provides for the inclusion of the
normal contribution payment in compensation earnable.
(5) The monetary value of a service or noncash advantage furnished
by the employer to the member, except as expressly and specifically
provided in this part, is not special compensation unless regulations
promulgated by the board specifically determine that value to be
"special compensation."
(6) The board shall promulgate regulations that delineate more
specifically and exclusively what constitutes "special compensation"
as used in this section. A uniform allowance, the monetary value of
employer-provided uniforms, holiday pay, and premium pay for hours
worked within the normally scheduled or regular working hours that
are in excess of the statutory maximum workweek or work period
applicable to the employee under Section 201 et seq. of Title 29 of
the United States Code shall be included as special compensation and
appropriately defined in those regulations.
(7) Special compensation does not include any of the following:
(A) Final settlement pay.
(B) Payments made for additional services rendered outside of
normal working hours, whether paid in lump sum or otherwise.
(C) Other payments the board has not affirmatively determined to
be special compensation.
(d) Notwithstanding any other provision of law, payrate and
special compensation schedules, ordinances, or similar documents
shall be public records available for public scrutiny.
(e) (1) As used in this part, "group or class of employment" means
a number of employees considered together because they share
similarities in job duties, work location, collective bargaining
unit, or other logical work-related grouping. One employee may not be
considered a group or class.
(2) Increases in compensation earnable granted to an employee who
is not in a group or class shall be limited during the final
compensation period applicable to the employees, as well as the two
years immediately preceding the final compensation period, to the
average increase in compensation earnable during the same period
reported by the employer for all employees who are in the same
membership classification, except as may otherwise be determined
pursuant to regulations adopted by the board that establish
reasonable standards for granting exceptions.
(f) As used in this part, "final settlement pay" means pay or cash
conversions of employee benefits that are in excess of compensation
earnable, that are granted or awarded to a member in connection with,
or in anticipation of, a separation from employment. The board shall
promulgate regulations that delineate more specifically what
constitutes final settlement pay.
(g) (1) Notwithstanding subdivision (a), "compensation earnable"
for state members means the average monthly compensation, as
determined by the board, upon the basis of the average time put in by
members in the same group or class of employment and at the same
rate of pay, and is composed of the payrate and special compensation
of the member. The computation for an absence of a member shall be
based on the compensation earnable by him or her at the beginning of
the absence and for time prior to entering state service shall be
based on the compensation earnable by him or her in the position
first held by him or her in that state service.
(2) Notwithstanding subdivision (b), "payrate" for state members
means the average monthly remuneration paid in cash out of funds paid
by the employer to similarly situated members of the same group or
class of employment, in payment for the member's services or for time
during which the member is excused from work because of holidays,
sick leave, vacation, compensating time off, or leave of absence.
"Payrate" for state members shall include:
(A) An amount deducted from a member's salary for any of the
following:
(i) Participation in a deferred compensation plan established
pursuant to Chapter 4 (commencing with Section 19993) of Part 2.6.
(ii) Payment for participation in a retirement plan that meets the
requirements of Section 401(k) of Title 26 of the United States
Code.
(iii) Payment into a money purchase pension plan and trust that
meets the requirements of Section 401(a) of Title 26 of the United
States Code.
(iv) Participation in a flexible benefits program.
(B) A payment in cash by the member's employer to one other than
an employee for the purpose of purchasing an annuity contract for a
member under an annuity plan that meets the requirements of Section
403(b) of Title 26 of the United States Code.
(C) Employer "pick up" of member contributions that meets the
requirements of Section 414(h)(2) of Title 26 of the United States
Code.
(D) Disability or workers' compensation payments to safety members
in accordance with Section 4800 of the Labor Code.
(E) Temporary industrial disability payments pursuant to Article 4
(commencing with Section 19869) of Chapter 2.5 of Part 2.6.
(F) Other payments the board may determine to be within "payrate."
(3) Notwithstanding subdivision (c), "special compensation" for
state members shall mean all of the following:
(A) The monetary value, as determined by the board, of living
quarters, board, lodging, fuel, laundry, and other advantages of any
nature furnished to a member by his or her employer in payment for
the member's services.
(B) Compensation for performing normally required duties, such as
holiday pay, bonuses (for duties performed on regular work shift),
educational incentive pay, maintenance and noncash payments,
out-of-class pay, marksmanship pay, hazard pay, motorcycle pay,
paramedic pay, emergency medical technician pay, Peace Officer
Standards and Training (POST) certificate pay, and split shift
differential.
(C) Compensation for uniforms, except as provided in Section
20632.
(D) Other payments the board may determine to be within "special
compensation."
(4) "Payrate" and "special compensation" for state members do not
include any of the following:
(A) The provision by the state employer of a medical or hospital
service or care plan or insurance plan for its employees (other than
the purchase of annuity contracts as described below in this
subdivision), a contribution by the employer to meet the premium or
charge for that plan, or a payment into a private fund to provide
health and welfare benefits for employees.
(B) A payment by the state employer of the employee portion of
taxes imposed by the Federal Insurance Contribution Act.
(C) Amounts not available for payment of salaries and that are
applied by the employer for the purchase of annuity contracts
including those that meet the requirements of Section 403(b) of Title
26 of the United States Code.
(D) Benefits paid pursuant to Article 5 (commencing with Section
19878) of Chapter 2.5 of Part 2.6.
(E) Employer payments that are to be credited as employee
contributions for benefits provided by this system, or employer
payments that are to be credited to employee accounts in deferred
compensation plans. The amounts deducted from a member's wages for
participation in a deferred compensation plan may not be considered
to be "employer payments."
(F) Payments for unused vacation, annual leave, personal leave,
sick leave, or compensating time off, whether paid in lump sum or
otherwise.
(G) Final settlement pay.
(H) Payments for overtime, including pay in lieu of vacation or
holiday.
(I) Compensation for additional services outside regular duties,
such as standby pay, callback pay, court duty, allowance for
automobiles or any travel expenses, and bonuses for duties performed
after the member's regular work shift.
(J) Amounts not available for payment of salaries and that are
applied by the employer for any of the following:
(i) The purchase of a retirement plan that meets the requirements
of Section 401(k) of Title 26 of the United States Code.
(ii) Payment into a money purchase pension plan and trust that
meets the requirements of Section 401(a) of Title 26 of the United
States Code.
(K) Payments made by the employer to or on behalf of its employees
who have elected to be covered by a flexible benefits program, where
those payments reflect amounts that exceed the employee's salary.
(L) Any allowance for housing.
(M) Other payments the board may determine are not "payrate" or
"special compensation."
(5) If the provisions of this subdivision, including the board's
determinations pursuant to subparagraph (F) of paragraph (2) and
subparagraph (D) of paragraph (3), are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5 or 3560, the memorandum of understanding shall be
controlling without further legislative action, except that if the
provisions of a memorandum of understanding require the expenditure
of funds, those provisions may not become effective unless approved
by the Legislature in the annual Budget Act. No memorandum of
understanding reached pursuant to Section 3517.5 or 3560 may exclude
from the definition of either "payrate" or "special compensation" a
member's base salary payments or payments for time during which the
member is excused from work because of holidays, sick leave,
vacation, compensating time off, or leave of absence. If items of
compensation earnable are included by memorandum of understanding as
"payrate" or "special
compensation" for retirement purposes for represented and higher
education employees pursuant to this paragraph, the Department of
Personnel Administration or the Trustees of the California State
University shall obtain approval from the board for that inclusion.
(6) (A) Subparagraph (B) of paragraph (3) prescribes that
compensation earnable includes compensation for performing normally
required duties, such as holiday pay, bonuses (for duties performed
on regular work shift), educational incentive pay, maintenance and
noncash payments, out-of-class pay, marksmanship pay, hazard pay,
motorcycle pay, paramedic pay, emergency medical technician pay, POST
certificate pay, and split shift differential; and includes
compensation for uniforms, except as provided in Section 20632; and
subparagraph (I) of paragraph (4) excludes from compensation earnable
compensation for additional services outside regular duties, such as
standby pay, callback pay, court duty, allowance for automobile, and
bonuses for duties performed after regular work shift.
(B) Notwithstanding subparagraph (A), the Department of Personnel
Administration shall determine which payments and allowances that are
paid by the state employer shall be considered compensation for
retirement purposes for an employee who either is excluded from the
definition of state employee in Section 3513, or is a nonelected
officer or employee of the executive branch of government who is not
a member of the civil service.
(C) Notwithstanding subparagraph (A), the Trustees of the
California State University shall determine which payments and
allowances that are paid by the trustees shall be considered
compensation for retirement purposes for a managerial employee, as
defined in Section 3562, or supervisory employee as defined in
Section 3580.3.
SEC. 2. This act is an urgency statute
necessary for the immediate preservation of the public peace, health,
or safety within the meaning of Article IV of the Constitution and
shall go into immediate effect. The facts constituting the necessity
are:
Travel and housing allowances have been improperly included as
compensation in calculating the retirement benefits for certain state
employees, resulting in increased benefit payments for those
employees. Due to the state's severe fiscal crisis, and the fiduciary
responsibility to taxpayers, it is imperative to eliminate these
inflated retirement benefits at the earliest possible time.