BILL ANALYSIS                                                                                                                                                                                                    Ó






          SENATE PUBLIC EMPLOYMENT & RETIREMENT   BILL NO:  AB 1062
          Jim Beall, Chair             HEARING DATE:  June 24, 2013
          AB 1062 (Jones-Sawyer)    as amended   4/15/13            
          FISCAL:  YES

           STATE HUMAN RESOURCES
           
           HISTORY  :

            Sponsor:  California Department of Human Resources (CalHR)

            Other legislation:  GRP 1 2012
                          That the Reorganization Plan be allowed to  
            take effect
                        SB 1308 (PE&R Committee),
                          Chapter 665, Statutes of 2012
                        SB 1309 (Negrete McLeod),
                          Chapter 360, Statutes of 2012

           ASSEMBLY VOTES  :

            PER & SS                 7-0       4/10/13
            Judiciary                10-0      4/30/13
            Appropriations           17-0      5/15/13
            Assembly Floor           74-0      5/23/13
           
          SUMMARY  :

          The Governor's Reorganization Plan of 2011 (GRP 1) merged the  
          Department of Personnel Administration (DPA) and the  
          administrative functions of the State Personnel Board (SPB)  
          into the Department of Human Resources (CalHR) but left  
          intact the State Personal Board proper (Board) to carry out  
          its constitutionally mandated function of preserving the  
          merit principle in state civil service.

          AB 1062 clarifies CalHR's authority; updates civil service  
          statutes by deleting archaic or obsolete language; and amends  
          related statutes to streamline CalHR's and the Board's  
          process.  More specifically, this bill:

          1)amends provisions requiring state agencies to conduct an  
            assessment every two years to determine the number of  
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            employees needed to provide services to non-English  
            speaking people; provides greater exemptions from the  
            assessment, now termed a language survey, to state agencies  
            that do not have at least a 5% bilingual client base; and  
            transfers the management of this program from the Board to  
            CalHR.

          2)exempts CalHR from the Administrative Procedures Act and  
            permits CalHR to follow the same regulation adoption  
            process as used by the Board.

          3)eliminates or clarifies references to "board" where  
            functions have moved from the Board to CalHR, changes  
            references to DPA to CalHR, and clarifies responsibilities  
            between the Board and CalHR in numerous sections.   
            Constitutionally required responsibilities related to  
            preserving the merit principle in civil service stay with  
            the Board.  CalHR inherits all other SPB administrative  
            responsibilities.

          4)clarifies provisions governing the Board's ability to audit  
            departments for civil service compliance and to order  
            remedies, as specified.

          5)makes changes to the timelines for allowing discovery in  
            Board hearings and for filing appeals to Board final  
            decisions.

          6)eliminates the requirement that an Administrative Law Judge  
            (ALJ) issue his or her proposed decision to the parties 10  
            days after filing the proposed decision with the Board as a  
            public record.  Instead, the bill requires the ALJ to issue  
            the proposed decision to the parties 10 days after the  
            Board has acted on the proposed decision.

           BACKGROUND AND ANALYSIS  :
          
           1)Existing law generally  :

            a)  empowers the Governor to reorganize state organizations  
              to achieve greater efficiency with the limitation that  
              the reorganization may not transfer jurisdiction or any  
              function conferred by the California Constitution on an  
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              agency created by the Constitution.

            b)  as required by GRP 1, created CalHR to consolidate all  
              functions of the former DPA with the non-constitutional  
              administrative functions of the SPB effective July 1,  
              2012.

            c)  specifies, per the California Constitution, the Board  
              shall enforce the civil service statutes and, by majority  
              vote of all its members, shall prescribe probationary  
              periods and classifications, adopt other rules authorized  
              by statute, and review disciplinary actions.  The Board  
              is empowered to appoint an Executive Director who shall  
              administer the civil service statutes and rules of the  
              Board.  All other personnel functions are transferred to  
              CalHR.

           2)This bill specifically affects the following  :  
           
            a)   Bilingual Language Assessment (Government Code 7299.4,  
              7299.5)  

               Existing law  requires all state agencies to conduct an  
              assessment and develop implementation plans to identify  
              bilingual service needs and how agencies will provide for  
              those needs.  All state agencies must develop an  
              implementation plan unless specifically exempted by  
              CalHR.
               
              This bill  requires only state agencies that report 5% or  
              greater bilingual service populations to develop  
              implementation plans to address bilingual service needs.

            b)   CalHR exemption from Administrative Procedures Act  
              (APA) (18210 - 18214)
             
               Existing law  provides that regulations adopted by SPB are  
              exempt from the APA and authorizes SPB to adopt a process  
              to develop rules and regulations.

               This bill  includes CalHR in the exemption from the APA,  
              authorizes CalHR to use the Board's alternative  
              rulemaking process, defines "regulations", as specified,  
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              provides that certain rules, decisions, instructions,  
              criteria, procedures, and guidelines are not regulations  
              and provides that the Board or CalHR can make regulations  
              respectively with regard to areas of law under each  
              entity's jurisdiction.

            c)   Authority of the Board and CalHR (18502)
             
               Existing law  establishes the Board, through the  
              California Constitution, to ensure that the state civil  
              service is operated pursuant to the merit principle and  
              authorizes, through statute, CalHR to administer all  
              functions of the former DPA and those functions of SPB  
              that are not constitutionally required to rest with the  
              Board.

               This bill  clarifies the Board's authority as granted by  
              the California Constitution and limits its authority to  
              make rules only with respect to its constitutional grant  
              of authority.

            d)   Technical Amendments to Board and Department References  
              (multiple sections)
             
               Existing law  contains multiple obsolete references to the  
              "board", "SPB, and "DPA" where duties and  
              responsibilities were transferred to CalHR under GRP 1  
              and subsequent implementing legislation.
               
              This bill  deletes and clarifies references to "board"  
              where functions have moved from the Board to CalHR,  
              changes references to DPA to CalHR, and clarifies  
              responsibilities between the Board and CalHR in numerous  
              sections.

            e)   Definition of Armed Services (18540)
             
                 Existing law  includes references to the Revenue Marine  
              Service, the Army and Navy Nurse Corps, and active  
              service as a nurse in the American Red Cross during World  
              War I.

                 This bill  deletes the obsolete references and specifies  
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              that Armed Services means the United States Air Force,  
              Army, Navy, and Marine Corps.

            f)   Career Executive Assignment (CEA) Class (18547, 19889 -  
              19889.4)
             
                 Existing law  defines CEA positions narrowly as  
              appointments to high administrative and policy  
              influencing positions that can be established  only  in the  
              top managerial levels of state service, limited to  
              persons with permanent civil service status, and  
              establishes eligibility for appointment to the class  
              through competitive examination.

                 This bill  broadens the definition of "career executive  
              assignment" by eliminating the restriction to only top  
              managerial levels.  The bill also requires the Board to  
              establish rules for competitive examinations of  
              candidates for the CEA class but provides that  
              appointment eligibility to the CEA class is limited to  
              permanent civil service employees who meet minimum  
              qualifications established for the class by CalHR.

            g)   Service of Process Requirements (18575)
           
               Existing law  provides that service of process upon any  
              person or appointing power be made in a manner provided  
              by Civil Procedure Code Section 1012 and 1013 but also  
              provides several exceptions, as specified.

               This bill  clarifies the rules governing service of  
              process to employees in certain personnel actions,  
              including disciplinary actions and medical actions by  
              amending or eliminating exceptions to service of process  
              and specifying references to the Civil Procedure Code.   
              The bill also provides that service of all other  
              documents not listed in this section shall be made as  
              prescribed by rule.

            h)   Definition of Rule (18577)  

               Existing law  retains language designating SPB exclusively  
              as the body that makes rules concerning the subject  
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              matter referenced whenever the terms "board rule",  
              "rule", or "rules" are made.
               
              This bill  eliminates references to "board rule" and  
              provides that the board  or  the department (i.e. CalHR)  
              can make rules concerning the subject matter referenced.

            i)   The Board's Audit Authority (18661)  

                 Existing law  provides the Board authority to conduct  
              audits of appointing powers to ensure compliance with  
              civil service laws and board regulations and specifies  
              remedies the Board may order.
             
                 This bill  clarifies that the Board's available remedies  
              are not limited to those listed in the section.

            j)   Bargaining Unit 5 - Adverse Action Investigation  
              Exemption - Filing Charges (18670, 19583.51)

                 Existing law  authorizes the Board to hold hearings and  
              make investigations concerning all matters related to  
              enforcement of civil service rules; provides that any  
              discipline or adverse action for Bargaining Unit 5 (BU 5)  
              members are not subject to Board investigation; and  
              limits Board review to acceptance or rejection of  
              discipline imposed as specified.

                 This bill  eliminates obsolete language exempting BU 5  
              from Board investigation and Board review in adverse  
              action cases and allowing persons, as specified, to file  
              charges against state employees in BU 5.

            k)  Filing Deadlines for Board Appeals (18671.1)
             
                 Existing law  provides that the Board shall render a  
              decision in an appeal of an adverse action within a  
              reasonable time not to exceed six months from when a  
              petition is filed or 90 days from submission (i.e., the  
              last day of the hearing, as specified), whichever is  
              shorter.  The Board may extend the period for issuing its  
              decision once for up to 45 days upon providing  
              substantial reasons for the need for the extension.
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                 This bill  changes the term "petition" to "appeal" in  
              provisions establishing the time frames for hearing  
              appeals; provides only for a six month period for the  
              Board to issue a decision; and eliminates the 90-day  
              post-submission alternative time period to issue a  
              decision.

            l)   Subpoena Process and Non-Compliance (18672 - 18676)  

                 Existing law  authorizes the Board to issue subpoenas at  
              the request of parties before the Board pursuant to  
              provisions of the Civil Procedure Code and provides that  
              a party requesting a continuance of a hearing because a  
              witness failed to respond to the subpoena must prove that  
              the party complied with the subpoena service process, as  
              specified.

                 This bill  authorizes the Board to issue subpoenas  
              pursuant also to provisions of the Government Code  
              relating to serving subpoenas on peace officer and state  
              employees.  The bill deletes a party's burden of proving  
              the party complied with the subpoena service process when  
              asking for a continuance because a witness failed to  
              respond to the subpoena.  The bill clarifies that a  
              witness is not excused from responding to a subpoena that  
              may tend to incriminate the witness so long as he or she  
              is granted immunity by the appropriate law enforcement  
              agency.

            m)   Repeal of Salary Step Provisions (18807)
             
                 This bill  repeals provisions granting authority to SPB  
              to define the term "salary step" since this authority now  
              resides with CalHR.

            n)   CalHR Audit Authority (18930.5)
             
                 This bill  clarifies CalHR's authority to audit  
              departments to ensure examinations are conducted  
              properly.

            o)   Document Requests (18931)  
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               This bill  authorizes CalHR to require certain  
              documentation to establish an applicant's qualification  
              for an examination and, whenever the law requires that an  
              applicant for a peace officer position be free from  
              emotional and mental impairment, requires the department  
              or designated appointing authority to undertake the  
              screening subject to the applicant's right to appeal to  
              the Board.


            p)   Examination Application Filing Requirements  (18934)
             
                 This bill  eliminates the requirement to file a formal  
              signed application in the office of CalHR or the  
              appointing power to reflect that electronic filing of  
              examination applications is allowed.

            q)   Authority to Refuse Admittance to Examination (18935)
             
                 This bill  clarifies provisions allowing CalHR or a  
              designated appointing power to refuse to examine, refuse  
              to declare eligible, or to withhold or withdraw from an  
              eligibility list anyone who is found to be unsuited or  
              not qualified for employment, as specified.

            r)   Examination Accommodations (18940)
             
               This bill  eliminates archaic language for accommodating  
              examinations of persons who observe the Sabbath from  
              sundown on Friday and instead uses contemporary language  
              to require reasonable accommodations for a disability or  
              any sincerely held religious belief pursuant to the Fair  
              Employment or House Act or any other applicable law.

            s)   Dismissed Employees Examination Eligibility (18941)
             
                 This bill  eliminates references to the Board's ability  
              to grant individual or blanket "Section 211" waivers that  
              allow dismissed employees to take civil service  
              examinations and instead substitutes language that allows  
              a dismissed employee to petition CalHR for individual  
              permission to take civil service examinations.
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            t)   Repeal of Exclusive Certification for Bilingual Vacant  
              Positions (19052)
             
                 Existing law  requires CalHR to certify as eligible for  
              vacant positions whose necessary qualifications include  
              fluency in a language in addition to English, only those  
              persons possessing language fluency in the other  
              language.

                 This bill  repeals the provision requiring eligibility  
              certification exclusively to bilingual persons for  
              positions requiring bilingual skills and replaces the  
              provision with a requirement for the appointing power to  
              provide CalHR information, as specified, whenever a  
              vacant position is filled.

            u)   Affirmative Action and Upward Mobility (19400 - 19406)
             
                 This bill  removes intent language referencing  
              implementation of affirmative action programs and  
              affirmative action goals and adds intent language to  
              establish an upward mobility program to allow employees  
              in low-paying occupations to develop and advance to their  
              highest potential.  The bill also repeals language  
              requiring SPB to provide written guidelines to implement  
              an upward mobility program and involve a cross section of  
              groups in preparation of the guidelines.




            v)   Discovery Motion Limitation at Board Hearings (19574.2)
             
               Existing law  provides an employee facing an adverse  
              action the right to inspect documents and make relevant  
              discovery, as specified.  A propounding party may  
              petition the Board when a responding party has not  
              provided the requested discovery, but only up until 15  
              days prior to the administrative hearing date.  The Board  
              shall rule on the discovery request within 20 days.  The  
              losing party can appeal the Board's ruling to superior  
              court.
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              This bill  changes the times by which a request for the  
              Board to rule on discovery motion may be made from until  
              15 days to until 90 days before the administrative  
              hearing.  The provision ensures that the Board will have  
              adequate time to hear any necessary witness to the  
              action.

            w)   Administrative Law Judge's Proposed Ruling (19582)  

                 Existing law  requires the ALJ to file his or her  
              proposed ruling with the Board  as a public record  .   
              Within 10 days after filing the proposed ruling with the  
              board, the ALJ shall furnish a copy to each party to the  
              hearing.  Under other statutory provisions and case law  
              precedents, certain personnel records are not public  
              records and cannot be disclosed.

                 This bill  eliminates reference to public records and  
              provides that the ALJ shall furnish his or her proposed  
              decision to the parties within 10 days after the Board  
              has acted on the proposed decision rather than within 10  
              days of the proposed decision being filed with the Board.  
               Records that are covered under the Public Records Act  
              would still be disclosed upon action by the Board.

            x)  Statue of Limitations - Rehearing (19586)
             
                 This bill  extends the period of time for the Board to  
              decide whether to grant a petition to rehear an issue  
              from 60 days to 90 days after receiving notice of the  
              petition.

            y)   Statute of Limitations - Cause of Action and Writ  
              Challenging Board Decision (19630)  

                 Existing law  prohibits an action or proceeding arising  
              from a cause of action related to any civil service law  
              unless commenced within 1 year of when the cause of  
              action first arose.  In cases of an appeal, the cause of  
              action is deemed to have first arose when the Board  
              issues its final decision.  Also, a person will not be  
              compensated for time following the cause of action unless  
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              the person filed or served his or her complaint within 90  
              days of the cause of action.

                 This bill  requires that a petition for a writ  
              challenging a Board decision must be filed within six  
              months of the date of the final Board decision.  This  
              effectively shortens the statute of limitations for  
              appeals from 1 year after the Board's final decision to 6  
              months after the final decision.

            z)   Census Report - Demographics of State Employees (19793)
             
                 This bill  allows CalHR to post on its public website a  
              census report that is currently required to be submitted  
              to the Governor, the Legislature, and the Department of  
              Finance (DOF) in writing.

            aa)  Federal Grant-in-Aid Merit Principle:  Local Agencies -  
              Automatic Repeal of Regulations (19811)
             
                 This bill  1) requires that any regulations adopted to  
              make specific or to carry out provisions of the Civil  
              Service Act be automatically repealed if they are in  
              conflict with amendments made by statutes ensuring  
              compliance with federal requirements to protect the merit  
              principle in local government or that become outdated at  
              any time due to a change in federal or state requirements  
              to preserve the merit principle in local government; 2)  
              makes Legislative findings that regulations are only  
              necessary to interpret or make specific the article if  
              required by federal law; and 3) states that requirements  
              imposed by the bill on local agencies shall not be  
              considered regulations or standards of general  
              application and shall not impose any duty on CalHR to  
              adopt regulations.

            bb)  Clarification of Duties (19815.4)
             
                 This bill  clarifies the duties of CalHR's director and  
              chief counsel, deletes obsolete provisions associated  
              with the initial establishment of DPA, and authorizes  
              CalHR to take corrective action, as specified, when it  
              discovers that an appointed power has allocated positions  
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              inappropriately.

            cc)  Psychological Screening - Correctional Peace Officers  
              (Penal Code Section 13601)
                
               Existing law  requires the Commission on Peace Officer  
              Standards and Training (CPOST) to develop standards for  
              the selection and training of state correctional peace  
              officer apprentices and provides that the standards are  
              subject to approval by SPB.  Also, correctional peace  
              officer apprentices shall be screened using psychological  
              and screening standards established by SPB.

               This bill  amends the Penal Code to eliminate SPB's role  
              in establishing psychological and screening standards for  
              correctional peace officers and transfers responsibility  
              for psychological screening to CalHR but does not clearly  
              provide that CalHR also has authority to approve or  
              reject the standards developed by CPOST.
                                        
           FISCAL  :

          According to the Assembly Appropriations Committee, AB 1062  
          would result in minor and absorbable costs.




           COMMENTS  :

           1)CalHR Authority to Approve Psychological and Screening  
            Standards  :  
           
          Currently, CPOST develops standards for the selection and  
          training of correctional officers, but SPB has maintained  
          final approval authority over this function pursuant to its  
          constitutional directive to ensure the state civil service  
          merit system. Similarly, SPB has established (and thus  
          approved) psychological and screening standards for state  
          peace officers.

          Both the Senate Public Safety Committee and this committee  
          believe that the bill's provision repealing SPB's authority  
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          to  approve  selection, psychological, and screening standards  
          developed by CPOST for correctional peace officers would  
          eliminate a function that should continue under CalHR as part  
          of its responsibility, in coordination with the Board, to  
          ensure a state workforce based on the merit principle and a  
          process of fair and competitive examinations.  The committees  
          do not take issue with CPOST establishing selection,  
          psychological, and screening standards, but believe CalHR  
          should continue to have final approval authority.

          Therefore, the Committee staff recommends amendments to  
          expressly ensure CalHR's continued authority and oversight  
          with respect to this matter.

           2)Arguments in Support :  
           
          According to the author, this bill is necessary "to clarify  
          the operating authority of CalHR as established by GRP 1 in  
          order to support the reorganization and to permit greater  
          efficiency and streamlining of operations now and in the  
          future."

           3)SUPPORT  :

            California Department of Human Resources (CalHR), Sponsor

           4)OPPOSITION  :

            None to date




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          Glenn A. Miles
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