BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 1978 (Jones-Sawyer)
As Amended June 15, 2014
Hearing Date: June 24, 2014
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Child Welfare Services
DESCRIPTION
This bill would enact the Child Welfare Social Worker
Empowerment and Foster Child Protection Act and prohibit
retaliation against a social worker who has reasonable cause to
believe that a policy, procedure, or practice related to the
provision of child welfare services endangers the health or
well-being of a child or children and the social worker
discloses this information to a government or law enforcement
agency, an appointed or elected official, or the public.
This bill would also provide that, if the State Department of
Social Services or a county welfare department or agency
comments publicly about a child fatality that has occurred in
the county and there is a reasonable suspicion that the fatality
was caused by abuse or neglect, the social worker on the case
may also comment publicly about the case within the scope of the
documents publicly released.
BACKGROUND
The California Child and Family Services Review System, enacted
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
(more)
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reviews of case information. 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 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.
This bill is substantially similar to AB 921 (Jones-Sawyer,
2013), which would have provided more extensive retaliation
protection to a social worker who discloses information believed
to endanger the health or well-being of a child. AB 921 was
vetoed by Governor Brown, who believed existing law already
provides whistleblower protections for social workers and the
bill was unnecessary to protect the opinions of only social
workers.
This bill was heard by the Senate Committee on Human Services on
June 10, 2013, and passed out on a vote of 3-1.
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,
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
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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 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 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, or any subsequent county
self-assessments, each county 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 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
(CWPA), 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 alleges any employee or state agency
has 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
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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
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
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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 CWPA 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 prohibit a county child welfare agency that is
an employer of social workers engaged in providing child
welfare services from retaliating against a social worker if
the social workers has reasonable cause to believe that a
policy, procedure, or practice related to the provision of
child welfare services endangers the health or well-being of a
child or children and the social worker discloses this
information to a government or law enforcement agency, an
appointed or elected official, or to the public.
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.
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
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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 also provide that, if the county welfare
department or agency comments publicly about the case within
the scope of the release, the social worker on the case may
also comment publicly about the case within the scope of the
release.
4. This bill would make various related legislative findings and
declarations.
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.
This bill will establish a process to ensure that social
worker-generated improvements and recommendations are included
in [child welfare system (CWS)] systemic reform discussions
and in county planning documents. Additionally AB 1978 would
prohibit counties from [retaliating] against social workers
for disclosing policies, procedures, or practices related to
child welfare services that the social worker feels may
endanger the health or well-being of a child.
2. Providing retaliation protection for county child welfare
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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
child welfare social workers who report information regarding a
policy or practice that endangers the health or well-being of a
child or the social worker. Service Employees International
Union - California (SEIU), sponsor, writes:
Over the years, SEIU members who are social workers have
shared numerous stories of their attempts to make changes in
the child protective services systems they work in to benefit
children and families?but workers' recommendations often fall
on deaf ears, and in some cases, suggestions and concerns have
even been met with responses ranging from indifference to
hostility. AB 1978 seeks to provide protections to workers
who have firsthand experience and knowledge on how policies
and procedures affect child safety.
For example:
Lincoln Saul, a social worker for more than 30 years,
helped bring to light problems with Los Angeles' system of
housing children taken into emergency custody. Multiple
infants were squeezed into one crib at the emergency
response command center - conditions that the Department
would not have tolerated if encountered in the field - and
older children and teens were camped out for the night on
the floor without blankets and pillows. Children endured
these conditions night after night, since it often took
many days to find a foster placement. Despite numerous
attempts made by Mr. Saul over the course of years to
rectify the problem internally, nothing changed. At least,
he wrote to the Board of Supervisors, and his letter was
acquired by the Los Angeles Times. The subsequent
publicity brought much-needed change - Los Angeles created
a children's welcoming center - but it also nearly cost Mr.
Saul his job, as his supervisor accused him of "trying to
create havoc" and his performance evaluation scores
plummeted from 29 to 7.
Another social worker in Los Angeles, after complaining
about Los Angeles County's emergency response system to
both his supervisors and then to the Board, was targeted
and harassed by his supervisor. His supervisor actually
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incurred 96 hours of overtime in one month following this
social worker's every move in search of grounds to
terminate him. The social worker was ultimately fired,
and, after five years of fighting back, was reinstated with
back pay costing the county several hundred thousand
dollars. The toll of not having employment for this worker
was life-changing, however, his house was foreclosed on and
his son was forced to leave college due to his father's
inability to help financially.
?
This bill will also allow social workers to comment on
circumstances related to a child death. SB 39 [Migden, Ch.
468, Stats. 2007] allowed for the public to have access to
specific information in a child's [Child Protective Services
(CPS)] file if there was a child death. SB 39 required the
county to provide the information in a specified time and also
allowed for county officials to comment on the case while
maintaining strict confidentiality standards. AB 1978 seeks
to provide the same ability to comment on cases with the same
confidentiality protection as in current law for county social
workers who have worked on the case resulting in a child
death.
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 for 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. Although this bill is similar to AB
921 (Jones-Sawyer, 2013), which contained a civil remedy for
retaliation modeled on the CWPA, this bill is substantially more
limited in the retaliation protection provided to social
workers. This bill would still provide a statutory prohibition
on retaliation against social workers who disclose information
regarding endangerment to the well-being of a child, and the
social worker could utilize the civil action provisions under
the CWPA to enforce the retaliation prohibition.
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.)
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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.
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 asserts that
requiring social worker input in county operational reforms will
provide better outcomes for the youth and families they serve.
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 if DSS or
the county welfare department or agency comments publicly about
the case within the scope of the documents released. 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 welfare program.
Concern was raised by the California Welfare Directors
Association of California (CWDAC) that this bill would authorize
a child welfare social worker to comment publicly about a child
fatality case, even if the county human services director
decides not to comment publicly to protect the privacy of other
parties. To address this concern, this bill was recently
amended to permit the social worker to publicly comment only
when DSS or the county welfare department or agency has done so
first.
5. Governor Brown's veto of AB 921
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This bill is similar to the enrolled version of AB 921
(Jones-Sawyer, 2013). In vetoing AB 921, Governor Brown stated:
Among its provisions, the bill would allow any social worker
to comment on any child welfare services policy, procedure and
practice, or any publicly released child fatality case, with
impunity.
While this bill has the best of intentions, it overreaches.
The judgment of social workers should be valued, but we don't
need a law to protect their opinions, and theirs alone.
Social workers, like other public or private employees,
already have "whistleblower" protections for illegal acts they
report. Specific county policies and practices that are legal
but problematic should be resolved at the county level, or
through legislation as a last resort, when counties cannot do
it on their own.
Social workers, the state and counties all have a duty to
protect children who are abused and neglected. We should all
work together in good faith to that end.
Support : National Association of Social Workers - California
Chapter
Opposition : None Known
HISTORY
Source : Service Employees International Union - California
Related Pending Legislation : None Known
Prior Legislation :
AB 758 (Frazier and Perea, 2014) would have required the State
Department of Social Services (DSS) 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 died without a hearing in the
Assembly Committee on Human Services.
SB 625 (Beall, 2013), among other things, would have required
the California Health and Human Services Agency workgroup to
examine outcome indicators for each racial and ethnic population
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served within a county to assist in identifying and developing
strategies to eliminate inequities in the services provided and
disparities in outcomes of the population served. SB 625 died
without a hearing in the Senate Committee on Human Services.
AB 921 (Jones-Sawyer, 2013) See Background; Comments 2, 5.
AB 406 (Torres, Ch. 7, Stats. 2013) deleted the January 1, 2014,
repeal of provisions authorizing counties to establish a child
abuse multidisciplinary personnel team, as allows provider
agencies to share confidential information in order to
investigate reports of suspected child abuse or neglect or for
the purpose of child welfare agencies making detention
determinations, as specified.
SB 39 (Migden, Ch. 468, Stats. 2007) See Comment 2.
AB 363 (Chu, Ch. 296, Stats. 2005), among other things, required
DSS to provide information to the appropriate legislative
committees on the process established to allocate funds to
counties.
Prior Vote :
Senate Committee on Human Services (Ayes 3, Noes 1)
Assembly Floor (Ayes 64, Noes 9)
Assembly Committee on Appropriations (Ayes 14, Noes 3)
Assembly Committee on Human Services (Ayes 5, Noes 0)
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