BILL ANALYSIS Ó
SENATE COMMITTEE ON GOVERNANCE AND FINANCE
Senator Robert M. Hertzberg, Chair
2015 - 2016 Regular
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|Bill No: |AB 1661 |Hearing |6/22/16 |
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|Author: |McCarty |Tax Levy: |No |
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|Version: |6/13/16 Amended |Fiscal: |Yes |
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|Consultant|Favorini-Csorba |
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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
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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
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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
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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.
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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.
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