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