BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 921 (Jones-Sawyer)
As Amended May 2, 2013
Hearing Date: June 25, 2013
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Child Welfare Services
DESCRIPTION
This bill would require a county board of supervisors to adopt
an ordinance prohibiting a policy that prevents a county child
welfare social worker from disclosing or reporting information
that the social worker reasonably believes discloses a policy or
practice that endangers the health or well-being of a child.
This bill would provide for a civil penalty up to $10,000 for
each such violation by a county.
This bill would also prohibit retaliation against the social
worker who discloses the information or refuses to participate
in an activity that would endanger the health or well-being of a
child. This bill would provide for civil liability, which may
include punitive damages and attorney's fees, against an
employer who retaliates against the social worker.
This bill would also extend authorization, after release of
documents relating to a child fatality that occurred in a
county, to a child welfare social worker to comment on the case
within the scope of the release of documents.
This bill would make additional changes to the law relating to
crimes perpetrated against county child welfare social workers.
BACKGROUND
The California Child and Family Services Review System, enacted
(more)
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by AB 636 (Steinberg, Chapter 678, Statutes of 2001), was
established to provide better oversight of the child welfare
system. The review system covers child protective services,
foster care, adoption, family preservation, family support, and
independent living. This review system requires stakeholder
groups to participate in a workgroup to review all county child
welfare systems and includes a process for qualitative peer
reviews of case information.
The author argues that recent budget cuts and external audits
from two counties have revealed the need to provide county child
welfare social workers the ability to identify and implement
operational improvements that would further the purpose of the
review system to protect children in the child welfare system.
This bill, sponsored by the Children's Advocacy Institute at the
University of San Diego School of Law and the Service Employees
International Union, would provide retaliation protection for a
county child welfare social worker who discloses information
about a policy or practice the social worker reasonably believes
may endanger the health or well-being of a child or is otherwise
in violation of the law. This bill would also require a county
board of supervisors to adopt an ordinance prohibiting specified
retaliatory actions against the child welfare social worker.
This bill was heard by the Senate Committee on Public Safety on
June 11, 2013, and passed out on a vote of 5-2. This bill was
double-referred to the Senate Public Safety Committee because it
contains provisions relating to crimes perpetrated against
county child welfare social workers.
CHANGES TO EXISTING LAW
1. Existing law establishes a system of child welfare services
for abused and neglected children which is overseen by the
State Department of Social Services (DSS) and administered by
individual counties. Existing law requires the DSS to
establish the California Child and Family Service Review
System to review all county child welfare services, including
child protective services, foster care, adoption, family
preservation, family support, and independent living. (Welf.
& Inst. Code Sec. 10601.2(a).)
Existing law requires the California Health and Human Services
Agency to convene a workgroup comprised of various interested
state and local county agencies, child advocacy organizations,
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and foster parent organizations to establish a workplan by
which child and family service reviews are conducted. (Welf.
& Inst. Code Sec. 10601.2(c)(1).)
Existing law requires that workgroup, when establishing the
workplan, to broadly consider collaboration with all entities
to allow the adequate exchange of information and coordination
of efforts to improve outcomes for foster youth and families.
(Welf. & Inst. Code Sec. 10601.2(c)(2).)
Existing law requires the DSS to review each county's child
welfare services according to outcome indicators and to
identify and promote the replication of best practices in
child welfare service delivery. (Welf. & Inst. Code Sec.
10601.2(e).)
Existing law requires the DSS to provide information annually
to the budget committees of both houses of the Legislature
including findings and recommendations for child welfare
system improvements identified in county self-assessments and
county system improvement plans. (Welf. & Inst. Code Sec.
10601.2(f).)
This bill would require in developing county self-assessments
and county improvement plans, that each county consult with
stakeholders, including, but not limited to, county child
welfare agencies and probation agency staff at all levels,
current and former foster children, children's attorneys, and
foster care providers. This bill would require the county to
consult with at least one county child welfare worker named by
the bargaining unit representing children's social workers.
This bill would require the county improvement plans approved
by the county board of supervisors to include a separately
titled provision that lists and provides the rationale for
proposed operational improvements identified during the
stakeholder process that may be implemented at a cost savings
to the county or within existing county resources.
2. Existing law , the California Whistleblower Protection Act
(WPA), provides that state employees should be free to report
waste, fraud, abuse of authority, violation of law, or threat
to public health without fear of retribution. (Gov. Code Sec.
8547.1.)
Existing law authorizes the State Auditor to investigate
information received that any employee or state agency has
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engaged in an improper governmental activity, and the identity
of the person providing the information that initiated the
investigation, or of any person providing information in
confidence to further an investigation, shall not be disclosed
without the written permission of the person providing the
information except that the State Auditor may make the
disclosure to a law enforcement agency that is conducting a
criminal investigation. (Gov. Code Sec. 8547.5(b).)
Existing law provides that any person, who intentionally
engages in acts of reprisal, retaliation, threats, coercion,
or similar acts against a state employee or applicant for
state employment for having made a protected disclosure, is
subject to a fine not to exceed 10,000 and imprisonment in the
county jail for a period not to exceed one year. (Gov. Code
Sec. 8547.8(b).)
Existing law provides that in addition to all other penalties
provided by law, any person who intentionally engages in acts
of reprisal, retaliation, threats, coercion, or similar acts
against a state employee or applicant for state employment for
having made a protected disclosure is liable in an action for
damages brought against him or her by the injured party.
(Gov. Code Sec. 8547.8(c).)
Existing law authorizes a court, in a retaliation proceeding,
to award punitive damages where the acts of the offending
party are proven to be malicious and attorney's fees where
liability has been established. (Gov. Code Sec. 8547.8(c).)
Existing law maintains the ability of an appointing power,
manager, or supervisor to take, direct others to take,
recommend, or approve any personnel action or fail to take a
personnel action with respect to any state employee or
applicant for state employment if the appointing power,
manager, or supervisor reasonably believes any action or
inaction is justified on the basis of evidence separate and
apart from the fact that the person has made a protected
disclosure. (Gov. Code Sec. 8547.8(d).)
Existing law provides that in any civil action or
administrative proceeding, once it has been demonstrated by a
preponderance of evidence that an activity protected was a
contributing factor in the alleged retaliation against a
former, current, or prospective employee, the burden of proof
shifts to the supervisor, manager, or appointing power to
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demonstrate by clear and convincing evidence that the alleged
action would have occurred for legitimate, independent reasons
even if the employee had not engaged in protected disclosures
or refused an illegal order. If the supervisor, manager, or
appointing power fails to meet this burden of proof in an
adverse action against the employee in any administrative
review, challenge, or adjudication in which retaliation has
been demonstrated to be a contributing factor, the employee
shall have a complete affirmative defense in the adverse
action. (Gov. Code Sec. 8547.8(e).)
Existing law states that the WPA does not diminish the rights,
privileges, or remedies of any employee under any other
federal or state law or under any employment contract or
collective bargaining agreement. (Gov. Code Sec. 8547.8(f).)
Existing law prohibits retaliation against any other state
officer or employee or member of the public who in good faith
reports, discloses, divulges, or otherwise brings to the
attention of, the Attorney General or any other appropriate
authority, any facts or information relative to actual or
suspected violation of any law of this state or the United
States occurring on the job or directly related to the job.
(Gov. Code Sec. 19572(x).)
This bill would require a county board of supervisors to adopt
an ordinance by January 1, 2015 that prohibits the following
actions against a social worker, who is employed by a county
child welfare agency:
making, adopting, or enforcing any rule, regulation, or
policy to prevent the employee from disclosing or reporting
information to the public that the social worker has
reasonable cause to believe discloses a policy or practice
that endangers the health or well-being of a child or
violates the law;
retaliating against the employee for disclosing or
reporting information to the public, an appointed or
elected official, or an employee or other official of a
governmental agency, where the social worker has reasonable
cause to believe that the information discloses a policy or
practice that endangers the health or well-being of a child
or violates the law; and
retaliating against the employee for refusing to
participate in an activity that would result in endangering
the health or well-being of a child or is a violation of
the law.
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This bill would provide that in addition to other penalties or
damages, a county that adopts an ordinance described above
shall be liable for a civil penalty up to $10,000 for each
violation, and the employee's reasonable attorney's fees and
costs.
This bill would provide that in a civil action or
administrative proceeding brought pursuant to that ordinance,
once it has been demonstrated by a preponderance of the
evidence that an activity was a contributing factor in the
alleged prohibited action against the employee, the employer
would have the burden of proof to demonstrate by clear and
convincing evidence that the alleged action would have
occurred for legitimate, independent reasons, even if the
employee had not engaged in the activity.
This bill would provide that it should not be construed to
authorize a social worker employed by a county child welfare
agency to disclose the identity of a child or the case file.
This bill would provide that county child welfare agency
includes a county welfare department, child welfare
department, and any other county agency that employs social
workers and is responsible for the placement and supervision
of children and youth in foster care.
This bill would provide that in addition to any other penalty
provided by law, a person who intentionally engages in acts of
reprisal, retaliation, threats, coercion, or similar acts
against an employee of a county child welfare agency for a
violation of the ordinance shall be liable in a civil action
for damages brought against him or her by the injured party.
This bill would authorize an award of punitive damages where
the acts of the party alleged to be in violation of the
ordinance are proven to be malicious.
This bill would provide that where liability has been
established, the injured party shall also be entitled to
reasonable attorney's fees as provided by law.
This bill would not prevent an appointing power, manager, or
supervisor from taking, directing others to take,
recommending, or approving any personnel action or from taking
or failing to take a personnel action with respect to any
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employee of a county child welfare agency if the appointing
power, manager, or supervisor reasonably believes any action
or inaction is justified on the basis of evidence separate and
apart from the fact that the person has made a protected
disclosure.
This bill would provide that it should not be construed to
diminish the rights, privileges, or remedies of any employee
under any other federal or state law or under any employment
contract or collective bargaining agreement.
3. Existing law requires that within five business days of
learning that a child fatality has occurred in the county and
that there is a reasonable suspicion that the fatality was
caused by abuse or neglect, the custodian of records for the
county child welfare agency, upon request, shall release
specified information. (Welf. & Inst. Code Sec. 10850.4.)
Existing law provides that once documents have been released
by the custodian of records, the DSS or the county welfare
department or agency may comment on the case within the scope
of the release. (Welf. & Inst. Code Sec. 10850.4(h).)
This bill would additionally authorize any county child
welfare social worker to comment on the case within the scope
of the release.
4. Existing law establishes the crime of assault against
specified public safety officers, such as peace officers,
firefighters, and emergency medical technicians, among others,
while engaged in the performance of their duties, as
specified. The offense is punishable by a fine not exceeding
$2,000, or by imprisonment in a county jail not exceeding one
year, or by both the fine and imprisonment. (Pen. Code Secs.
240, 241.)
Existing law establishes the crime of battery against
specified public safety officers, such as peace officers,
firefighters, and emergency medical technicians, among others,
while engaged in the performance of their duties, as
specified. The offense is punishable, except when the victim
sustains an injury, by a fine not exceeding $2,000, or by
imprisonment in a county jail not exceeding one year, or by
both the fine and imprisonment. (Pen. Code Secs. 242, 243,
243.1.)
This bill would expand the scope of the assault offense to
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include social workers employed by a county in child welfare,
as defined, while engaged in the performance of their duties,
as specified.
This bill would expand the scope of the battery offense
described above to include a social worker employed by a
county in child welfare, as defined, while engaged in the
performance of his or her duty, as specified.
COMMENT
1. Stated need for the bill
The author writes:
With recent, sweeping budget cuts to child welfare and foster
care and re-alignment, it is more important than ever for
county social workers, boards of supervisors, and child
welfare directors to identify and implement operational
improvements that will reduce paperwork, enhance social worker
productivity and job satisfaction, and help ensure that abused
and neglected children are well looked after.
Unprecedented budget cuts and external audits from two
counties that found that bureaucracy impedes effective social
work, imperiling the lives of children, it is apparent that
social workers have not had a platform where they feel free to
advocate for common-sense policies and procedures.
[T]his measure imposes what is in essence an empowering
suggestion box for social workers engaged in child welfare.
This bill will establish a process to ensure that social
worker-generated improvements and recommendations are included
in CWS systemic reform discussions and in county planning
documents. The measure requires counties to create ordinances
that would institute whistleblower protections for social
workers.
2. Providing retaliation protection for county child welfare
social workers
Existing law, the California Whistleblower Protection Act
(CWPA), provides whistleblower protection for state employees
who report waste, fraud, abuse of authority, violations of law,
or threats to public health. (Gov. Code Sec. 8547 et seq.)
This bill would provide whistleblower protection for county
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child welfare social workers who report information regarding a
policy or practice that endangers the health or well-being of a
child or that is in violation of the law.
Co-sponsor Service Employees International Union (SEIU) argues
that this bill would allow county social workers to discuss
reform and systemic problems without fear of retaliation, which
helps ensure that abused and neglected children are well looked
after. The Children's Advocacy Institute at the University of
San Diego (CAI), co-sponsor, argues that "[i]n the private
sector, a CEO knows that he or she should seek the advice of
frontline employees." Furthermore, CAI argues that social
workers "should be able to sound the alarm to the public they
serve about policies that hurt children [and] should be
protected so they can do their jobs based solely on what is
right for children."
a. Prohibition by local ordinance
This bill would require a county board of supervisors to adopt
an ordinance prohibiting the making of any rules or policies
to prevent a county child welfare agency social worker from
disclosing information regarding a policy or practice that may
endanger the health or well-being of a child or is otherwise
unlawful. This bill would also provide discrimination and
retaliation protection for a social worker who discloses the
information to the public, an appointed or elected official,
or an employee or other official of a governmental, including
law enforcement, agency.
As with other whistleblower protections, the goal of
prohibiting retaliation and discrimination against a person
who reveals unlawful conduct is to provide increased public
awareness and accountability to wrongdoers. In order to
protect children in the welfare system, it is important to
provide safety to social workers speaking out against policies
and practices that endanger these children.
b. Evidentiary requirements
The CWPA provides that in a civil action or administrative
proceeding brought pursuant to the ordinance, once the
plaintiff shows by a preponderance of the evidence that an
activity prohibited by the ordinance was a contributing
factor in the alleged prohibited act against the employee, the
employer would have the burden to prove by clear and
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convincing evidence that the alleged action would have
occurred for legitimate, independent reasons, even if the
employee had not engaged in whistleblowing protected under the
ordinance. (Gov. Code Sec. 8547.8(e).) This bill, which
provides whistleblower protection to county child welfare
social workers, is modeled after the CWPA and contains these
same provisions.
Notably, this bill maintains the CWPA provision protecting
employers and would not prevent an employer from taking a
personnel action that the employer reasonably believes is
justified on the basis of evidence separate and apart from the
whistleblowing activity protected in this bill. In this way,
a social worker who unreasonably discloses information as a
means to cause harm to the family or to coworkers could be
disciplined by the employer.
c. Remedies for violations of ordinance
As noted above, this bill is modeled after the CWPA. As under
the CWPA, this bill would impose civil penalties up to $10,000
for each violation of the ordinance, and would authorize an
award of attorney's fees and costs to the employee. This bill
would also authorize an award of damages for injury caused by
a person who intentionally engages in acts of reprisal,
retaliation, threats, coercion. Furthermore, punitive damages
may be awarded where the acts of the party alleged to have
violated the whistleblower ordinance are proven to be
malicious.
3. Requiring counties to consult with stakeholders regarding
self-assessments
Existing law requires the California Health and Human Services
Agency to convene a workgroup of specified stakeholders and
public agencies to establish a workplan to improve outcomes for
foster youth and families. (Welf. & Inst. Code Sec. 10601.2.)
This bill would also require each county, in developing county
self-assessments and county improvement plans or subsequent
assessments, to consult with stakeholders, including, but not
limited to, county child welfare agencies and probation agency
staff at all levels, current and former foster children,
children's attorneys, and foster care providers. This bill
would also require the county to consult with at least one
county child welfare worker named by the bargaining unit
representing children's social workers.
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In support of this bill, SEIU states that although current law
requires social workers to provide information and
recommendations around systematic reforms, many of the child
welfare social workers believe that their recommendations are
not considered or provided in reports. SEIU further argues that
"[o]ur workers are on the front lines providing essential
services to protect youth and assist families dealing with
extremely difficult and challenging circumstances. We believe
that AB 921 is necessary to ensure that social workers
experiences are shared and used to help shape policies that
impact the families they serve. . . . This bill will empower
workers, give them a vote and a seat at the table when
operational reforms are made, discussed and/or recommended."
SEUI argues that requiring social worker input in county
operational reforms will provide better outcomes for the youth
and families they serve.
CAI notes that "[i]n the private sector, a CEO knows that he or
she should seek the advice of frontline employees when
determining how to shape the policies and practices that govern
their jobs and productivity. Government engaged in the job of
caring for children should do no less. If front-line social
workers were being listened to in a meaningful way comparable to
valued employees at private firms, employee manuals of thousands
of pages (for example) could never have occurred. These
employees who are on the frontline of ensuring that our most
fragile children are well-looked after . . . . should have a
modest forum where their cost-saving, child-welfare improving
suggestions can be heard."
In 2001, AB 636 (Steinberg, Ch. 678, Stats. 2001) established
the Child and Family Service Review system and required the
California Health and Human Services Agency to establish a work
plan by which the child and family service reviews will be
conducted. At the time, the state's child welfare system had
not been successful in caring for its most vulnerable children -
those placed in foster care. AB 636 sought to make the child
welfare system more accountable by adopting and utilizing
measurable outcome standards that gauged the state's preferred
results for foster youth.
As with AB 636, this bill seeks to improve foster youth services
and accountability. Requiring the participation of county child
welfare social workers in the operational improvement process is
arguably necessary, since the social workers are the closest
witnesses to needs of the foster youth and their families.
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4. Extending authority to comment on child fatality cases
Existing law authorizes DSS and the county welfare department or
agency to comment on a case involving a child fatality, which is
suspected to have been caused by abuse or neglect. (Gov. Code
Sec. 10850.4.) This bill would also authorize any county child
welfare social worker to comment on the case within the scope of
the release of documents by the custodian of records. By
allowing the social worker to provide public comment on a child
fatality case, the welfare system would be more accountable to
the communities it serves. Providing increased discussion of
child fatalities arguably promotes better public oversight of
the system and can result in increased protection for children
under the protection of the welfare program.
5. Remaining details under the jurisdiction of the Senate
Committee on Public Safety
The remaining sections of this bill relate to crimes perpetuated
against county child welfare social workers and are within the
jurisdiction of the Senate Committee on Public Safety. That
committee passed this bill on June 11, 2013.
Support : None Known
Opposition : None Known
HISTORY
Source : Children's Advocacy Institute at the University of San
Diego School of Law; Service Employees International Union
Related Pending Legislation :
AB 758 (Frazier and Perea) would require the State Department of
Social Services to include additional information in its report
identifying child fatalities and systemic issues or patterns
revealed by the notices and other relevant information. AB 758
is currently in the Assembly Human Services Committee.
SB 625 (Beall), among other things, would require the California
Health and Human Services Agency workgroup to examine outcome
indicators for each racial and ethnic population served within a
county to assist in identifying and developing strategies to
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eliminate inequities in the services provided and disparities in
outcomes of the population served. SB 625 is currently in the
Senate Human Services Committee.
Prior Legislation :
SB 39 (Migden, Ch. 468, Stats. 2007) established an expedited
process for the release of specific information in county
welfare agency records that are related to the death of a child
and clarified the presumption of disclosure in existing law,
subject to the existence of statutory grounds to limit or
prohibit disclosure.
AB 363 (Chu, Ch. 296, Stats. 2005), among other things, required
the Department of Social Services to provide information to the
appropriate legislative committees on the process established to
allocate funds to counties.
AB 636 (Steinberg, Ch. 678, Stats. 2001) See Comment 3.
Prior Vote :
Assembly Committee on Public Safety (Ayes 5, Noes 2)
Assembly Committee on Appropriations (Ayes 12, Noes 5)
Assembly Floor (Ayes 49, Noes 22)
Senate Committee on Public Safety (Ayes 5, Noes 2)
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