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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