BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 2727
                                                                  Page  1

          Date of Hearing:  April 1, 2014

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                Bob Wieckowski, Chair
                AB 2727 (Frazier) - As Introduced:  February 21, 2014

                                  PROPOSED CONSENT
           
          SUBJECT  :  COURTS: WITNESS EXPENSES: LOCAL AGENCY EMPLOYEES

           KEY ISSUE  :  SHOULD THE AMOUNT REQUIRED TO BE DEPOSITED WITH A  
          LOCAL PUBLIC AGENCY WHEN ITS EMPLOYEE IS SUBPOENAED TO APPEAR AS  
          A WITNESS IN CIVIL LITIGATION BE INCREASED, FOR THE FIRST TIME  
          SINCE 1991, TO REFLECT INCREASED COSTS SINCE THAT TIME AND TO  
          MATCH THE DEPOSIT AMOUNT CURRENTLY APPLICABLE TO STATE AND  
          COUNTY EMPLOYEES?

                                      SYNOPSIS
          
          This non-controversial bill seeks to increase, for the first  
          time in over 20 years, the amount that a party must deposit with  
          a local public agency when the party subpoenas an employee of  
          that agency to attend a civil action or proceeding as a witness.  
           According to proponents, the bill is needed because the current  
          $150 deposit amount applying to local public agencies is  
          inadequate and has not been increased since 1991, despite the  
          fact that employee salaries and other expenses have  
          significantly increased over that time.  While existing law  
          allows local agencies to invoice for remaining expenses above  
          the $150 deposit amount, proponents contend these invoices often  
          go unpaid and ultimately uncollected because of the costs  
          associated with collection, leaving the local agency holding the  
          bag.  Proponents correctly note that the amount sought to be  
          increased by this bill is  not  a fee increase, but a deposit  
          increase.  The proposed increase in the deposit amount from $150  
          to $275 would, however, ensure the local public agency holds a  
          larger guaranteed portion of the actual total cost should the  
          party subsequently refuse to pay any additional amount above the  
          deposit that it owes.  In addition, the increase sought by this  
          bill would match this amount ($275) with the deposit amount that  
          currently applies to subpoenas of state and county employees,  
          thereby increasing consistency and promoting fairness.  The bill  
          is supported by the League of Cities and law enforcement  
          recordkeepers, and has no known opposition.
           








                                                                 AB 2727
                                                                  Page  2

          SUMMARY  :  Seeks to increase the amount to be deposited with a  
          local public agency when a party subpoenas an employee of that  
          agency to attend a civil action or proceeding as a witness.   
          Specifically,  this bill  increases, from $150 to $275, the amount  
          that a party must tender to the local public agency for each day  
          that an employee of that agency is required to remain in  
          attendance pursuant to a civil subpoena issued at the party's  
          request.

           EXISTING LAW  :  

          1)Provides for subpoenaing the attendance of any employee of a  
            local public agency with regard to events or transactions he  
            or she had perceived or investigated in the course of their  
            duties, and for the payment and reimbursement of the  
            employee's compensation and traveling expenses incurred in  
            complying with the subpoena.  (Government Code Section  
            68096.1(a).  All further references are to this code unless  
            otherwise stated.)

          2)Requires the party at whose request the subpoena is issued to  
            reimburse the employing public agency for these costs by  
            tendering the amount of  $150  to the person accepting the  
            subpoena for each day the employee of the local public agency  
            is required to remain in attendance pursuant to the subpoena.   
            (Section 68096.1(b).)

          3)Provides for subpoenaing the attendance of peace officers,  
            firefighters, and state, county and trial court employees with  
            regard to events or transactions they have perceived or  
            investigated in the course of their duties, and for the  
            payment and reimbursement of the employees' compensation and  
            traveling expenses incurred in complying with the subpoena.   
            (Section 68097.2(a).)

          4)Requires the party at whose request the subpoena is issued to  
            reimburse the employing public entity for these costs by  
            tendering the amount of  $275  to the person accepting the  
            subpoena for each day the peace officer, firefighter, or  
            state, county or court employee is required to remain in  
            attendance pursuant to the subpoena.  (Section 68097.2(b).)

          5)Requires the employing public entity, for all of the types of  
            employees described above, to refund any excess amount paid,  
            and requires the party at whose request the subpoena is issued  








                                                                  AB 2727
                                                                  Page  3

            to pay any shortfall, relative to the actual expenses incurred  
            by the public entity in connection with the public employee  
            complying with the subpoena.  (Section 68096.1, subd. (c) and  
            (d); Section 68097.2, subd. (c) and (d).)

           FISCAL EFFECT  :  As currently in print this bill is keyed  
          non-fiscal.

           COMMENTS  :  This non-controversial bill seeks to increase, for  
          the first time in over 20 years, the amount that a party must  
          deposit with a local public agency when the party subpoenas an  
          employee of that agency to attend a civil action or proceeding  
          as a witness. 

          Current law requires local agencies to pay an employee's regular  
          salary and other compensation when the employee is required by  
          subpoena to attend a civil action or proceeding as a witness in  
          litigation in a matter regarding an event or transaction that he  
          or she perceived or investigated, in the course of his or her  
          duties, when the public entity is not a party.  Existing law  
          also requires the party that requested the subpoena to tender to  
          the local agency a $150 deposit for each day that its employee  
          is required to remain in attendance pursuant to the subpoena.   
          Should the actual costs exceed $150, the requesting party is  
          further required to reimburse the local agency for the actual  
          costs above that amount.  Correspondingly, the local agency must  
          return deposit funds left over if the actual employee expenses  
          do not exceed the deposit amount of $150. 

           This bill provides a long overdue increase in the subpoena  
          deposit for local agency employees.   
          According to proponents, the bill is needed because the $150  
          deposit amount applying to local public agencies is inadequate  
          and has not been increased since 1991, despite the fact that  
          employee salaries and other expenses have significantly  
          increased over that time.  While current law allows local  
          agencies to invoice for remaining expenses above the $150  
          deposit amount, proponents contend these invoices often go  
          unpaid and uncollected because of the costs associated with  
          collection.  The author explains:

              [I]n practice, local governments have found that  
              collecting amounts beyond the $150 deposit can sometimes  
              be challenging and administratively difficult. Generally,  
              a local government's legal remedy for non-payment is to  








                                                                  AB 2727
                                                                  Page  4

              sue in small claims court. Except for in egregious cases,  
              the work to prepare for such litigation might not justify  
              what the local agency would expect to recover.

          Proponents correctly note that the amount sought to be increased  
          by this bill is  not  a fee increase, but a deposit increase.   
          Under existing law, the party requesting the subpoena is  
          responsible for all of the actual costs associated with the  
          employee's attendance at the civil proceeding, no more and no  
          less, and the party is entitled to a refund if the actual costs  
          never exceed the deposit.  The increase in the deposit amount  
          will, however, ensure the local public agency holds a larger  
          guaranteed portion of the actual total cost should the party  
          subsequently refuse to pay any additional amount above the  
          deposit that it owes.  This bill seeks to protect local agencies  
          by minimizing financial loss the agency may otherwise end up  
          absorbing when invoices to the party that requested the subpoena  
          go unpaid.

           This bill also promotes consistency and fairness by leveling  
          this deposit amount with the $275 deposit that applies to state,  
          county, and court employees.   AB 2612 (Achadjian), Chapter 377,  
          Statutes of 2012, increased the deposit amount from $150 to $275  
          that applies to peace officers, firefighters, state employees,  
          trial court employees, and county employees when they are  
          subject to subpoena to appear as a witness in civil litigation.   
          In light of this recent change, proponents contend it is unfair  
          to local public agencies to allow only a $150 deposit, as  
          compared to their state and public agency counterparts who are  
          currently entitled to a $275 deposit.  According to the author,  
          "There is not a public policy or practical reason why different  
          public entities and classifications should operate under  
          different subpoena deposit requirements."

          Furthermore, according to the author, the difference between the  
          two statutory amounts makes it unclear whether the deposit  
          amount for all county employees is $150 or $275.  Confusion  
          arises because Section 68097.2 (requiring $275) expressly  
          applies to county employees, while Section 68096.1 (requiring  
          $150) applies to employees of a local agency but defines "local  
          agency" to include a county, or city and county, among other  
          things.  (Section 68096.1, subd. (f).)  This bill would  
          eliminate that ambiguity by harmonizing those two sections and  
          establishing a consistent deposit standard in the amount of  
          $275.








                                                                  AB 2727
                                                                  Page  5


           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Law Enforcement Association of Records Supervisors
          California State Sheriffs' Association
          League of California Cities

           Opposition 
           
          None on file
           
          Analysis Prepared by  :   Anthony Lew / JUD. / (916) 319-2334