BILL ANALYSIS Ó SENATE COMMITTEE ON GOVERNANCE AND FINANCE Senator Robert M. Hertzberg, Chair 2015 - 2016 Regular ------------------------------------------------------------------ |Bill No: |AB 1661 |Hearing |6/22/16 | | | |Date: | | |----------+---------------------------------+-----------+---------| |Author: |McCarty |Tax Levy: |No | |----------+---------------------------------+-----------+---------| |Version: |6/13/16 Amended |Fiscal: |Yes | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant|Favorini-Csorba | |: | | ----------------------------------------------------------------- Local government: sexual harassment prevention training and education Requires local agency officials to undergo sexual harassment prevention training and education. Background Ethics Training. Local agency officials who serve a local agency that provides compensation must undergo two hours of ethics training within 6 months of commencing service and every two years thereafter (AB 1234, Salinas, 2005). This ethics training encompasses laws governing financial gains, transparency, and fair processes to ensure that local agency officials are aware of the requirements placed on them. Local agency officials include members of legislative bodies and other elected officials that serve cities, charter cities, counties, charter counties, and special districts. The ethics training programs can be offered in person, at home, or online and must be cleared with the Attorney General and Fair Political Practices Commission. Local governments must keep track of who attended for at least five years. Discrimination and Sexual Harassment Statutes. Various statutes, such as the Fair Employment and Housing Act (FEHA) and the Unruh Civil Rights Act, prohibit discrimination in employment, housing, public accommodation and services provided by business AB 1661 (McCarty) 6/13/16 Page 2 of ? establishments on the basis of specified personal characteristics such as sex, race, color, national origin, religion, and disability. The FEHA also requires an employer having 50 or more employees to provide at least two hours of training and education regarding sexual harassment to all "supervisory employees" within six months of becoming a supervisor, and once every two years thereafter (AB 1825, Reyes, 2004). The Department of Fair Employment and Housing administers the FEHA and regulates its implementation. FEHA regulations define employer to include the state of California, cities, counties, special districts, boards, commissions, and any other political or civil subdivision of the state. Under FEHA, supervisors are individuals that have the ability to hire, fire, address grievances, or take other discretionary actions related to other employees. Instances of Sexual Harassment by Local Officials. During the past few years, California has witnessed a number of high-profile cases in which elected local government officials were accused or found guilty of sexually harassing their staff or other employees. Most visible among them was the City of San Diego's scandal with its former mayor. A major issue in that case involved a dispute between the City and the former mayor over who was responsible for the mayor's sexual harassment training, which he didn't complete until after sexual harassment allegations were made public and after the required 6-month timeframe for training had elapsed. At issue is whether elected officials are considered "supervisory employees" and, as such, subject to current law that requires employers to provide sexual harassment training to employees who are supervisors. Some jurisdictions have interpreted the law to include elected officials among supervisory employees, while others have not. Some organizations want to clarify that local agency officials are required to complete training and education regarding sexual harassment. Proposed Law Assembly Bill 1661 requires, if a local agency provides any kind of compensation to its officials, every local agency official to receive at least two hours of sexual harassment prevention AB 1661 (McCarty) 6/13/16 Page 3 of ? training and education within the first six months of taking office or commencing employment and every two years thereafter. The local agency may also require other employees to receive sexual harassment prevention training and education, and an official who serves multiple local agencies is only required to receive the training and education once every two years. This training and education must include information and practical guidance on federal and state sexual harassment policies, including practical examples to instruct local agency officials on preventing sexual harassment. It may also include local sexual harassment prevention training and education policies. To meet the requirements of the bill, local agencies or associations of local agencies can offer training courses or self-study materials, and the training and education courses may be taken at home, in person, or online. Any course must provide participants with proof of participation. An entity that develops a program to meet this requirement must consult with the Attorney General, city attorney, or county counsel about the program's sufficiency and accuracy. A local agency in which officials are required to receive this training and education must provide its officials with a recommendation on available trainings at least annually in written form, and it must retain records, for five years, of the dates that its officials and employees took the training and the entity that provided the training. AB 1661 also provides that these requirements are in addition to any other laws requiring similar training and that they shall not supersede the existing requirements for supervisory employees to receive sexual harassment prevention training or the prohibitions on discrimination in the workplace. State Revenue Impact No estimate. Comments 1. Purpose of the bill . Local officials find themselves in positions of authority, which some officials abuse. State law AB 1661 (McCarty) 6/13/16 Page 4 of ? says that supervisors have to undergo training on recognizing and preventing sexual harassment. But some local governments have interpreted this requirement loosely, with costly consequences. Allegations of sexual harassment have sprung up across the state, from San Diego to Sacramento. The cost to cities to litigate or settle these claims is in the hundreds of thousands of dollars, diverting much needed revenue from essential constituent services. AB 1661 aims to stem this tide by making clear that all local officials need to receive training and education on sexual harassment. It pulls from existing requirements for ethics training and offers officials flexibility in how they met the requirements. By closing a loophole in existing law, AB 1661 helps protect public employees from sexual harassment and ensures that public servants meet the same standards as supervisors in private businesses. 2. Who's in ? Local agencies are subject to a wide variety of laws to ensure that local officials execute their duties without conflict or unseemly behavior: the Public Records Act, which ensures the public's access to local government communications and documents; the Brown Act, which is the state's open meetings law; and the Political Reform Act, which prohibits conflicts of interest. School districts and their officials are subject to each of these. But AB 1661 borrows from a definition of local agency that excludes school districts, as well as some other local governments such as municipal corporations. These agencies may also face some of the same questions about whether their officials are required to receive sexual harassment training under existing laws. The Committee may wish to consider amending AB 1661 to apply to school districts, municipal corporations, and other political subdivisions of the state. 3. Charter city . The California Constitution allows cities that adopt charters to control their own "municipal affairs." In all other matters, charter cities must follow the general, statewide laws. Because the Constitution doesn't define "municipal affairs," the courts determine whether a topic is a municipal affair or whether it's an issue of statewide concern. AB 1661 includes a legislative finding and declaration that providing all employees with the opportunity to work in a safe and harassment-free environment is a matter of statewide concern. Accordingly, the bill's provisions apply to all cities and counties in California, including charter cities and counties. AB 1661 (McCarty) 6/13/16 Page 5 of ? Assembly Actions Assembly Local Government Committee: 9-0 Assembly Appropriations Committee: 20-0 Assembly Floor: 78-0 Support and Opposition (6/16/16) Support : Equal Rights Advocates (sponsor); AFSCME; Association of California Water Agencies; California Association of Parks and Recreation Districts; California Fire Chiefs Association; California Women's Law Center; City of West Hollywood; CSAC Excess Insurance Authority; Fire Districts Association of California; Los Angeles County Professional Peace Officers Association; Organization of SMUD Employees; Sacramento Collective for Women's Rights; San Diego County Court Employees Association; San Luis Obispo County Employees Association. Opposition : Unknown. -- END --