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 Glenn A. Miles Date: June 15, 2013 Page 1 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 Glenn A. Miles Date: June 15, 2013 Page 2 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, Glenn A. Miles Date: June 15, 2013 Page 3 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 Glenn A. Miles Date: June 15, 2013 Page 4 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 Glenn A. Miles Date: June 15, 2013 Page 5 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. Glenn A. Miles Date: June 15, 2013 Page 6 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) Glenn A. Miles Date: June 15, 2013 Page 7 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. Glenn A. Miles Date: June 15, 2013 Page 8 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. Glenn A. Miles Date: June 15, 2013 Page 9 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 Glenn A. Miles Date: June 15, 2013 Page 10 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 Glenn A. Miles Date: June 15, 2013 Page 11 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 Glenn A. Miles Date: June 15, 2013 Page 12 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 ##### Glenn A. Miles Date: June 15, 2013 Page 13