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  |
          |          |                                 |Date:      |         |
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          |Author:   |McCarty                          |Tax Levy:  |No       |
          |----------+---------------------------------+-----------+---------|
          |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  







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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  








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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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