BILL NUMBER: AB 1291 CHAPTERED
BILL TEXT
CHAPTER 1024
FILED WITH SECRETARY OF STATE SEPTEMBER 30, 1998
APPROVED BY GOVERNOR SEPTEMBER 30, 1998
PASSED THE SENATE AUGUST 31, 1998
PASSED THE ASSEMBLY AUGUST 31, 1998
AMENDED IN SENATE AUGUST 28, 1998
AMENDED IN SENATE AUGUST 11, 1998
AMENDED IN SENATE JULY 14, 1998
AMENDED IN SENATE JULY 10, 1997
AMENDED IN SENATE JUNE 25, 1997
AMENDED IN ASSEMBLY JUNE 4, 1997
INTRODUCED BY Assembly Members Strom-Martin and Richter
FEBRUARY 28, 1997
An act to amend Section 1094.5 of the Code of Civil Procedure, to
amend Sections 3517.6, 18670, 18903, 19056.5, 19141, 19142, 19170.1,
19173.1, 19175.3, 19570.1, 19572.1, 19574, 19582, 19582.1, 19582.6,
19702, 19786, 19798, 19815.41, 19816.2, 19817, 19826.1, 19828, 19829,
19832, 19834, 19835, 19836.1, 19841, 19994, 19994.1, 19994.2, 19997,
19997.3, 19997.4, 19997.5, 19997.6, 19997.7, 19997.8, 19997.11,
19997.13, 22754, 22754.5, and 22955 of, and to add Sections 19576.5,
21363.6, 21465.5, 22754.7, 22955.5, and 22960.100 to, the Government
Code, and to amend Sections 10295 and 10344.1 of the Public Contract
Code, relating to state employees, making an appropriation therefor,
and declaring the urgency thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 1291, Strom-Martin. State firefighters: memorandum of
understanding.
(1) Existing law provides that if any provision of a memorandum of
understanding reached between the state employer and a recognized
employee organization representing state civil service employees
requires the expenditure of funds or requires legislative action to
permit its implementation, those provisions of the memorandum of
understanding shall not become effective unless approved by the
Legislature in the annual Budget Act.
This bill would approve provisions of a memorandum of
understanding that require the expenditure of funds or legislative
action to permit their implementation, entered into between the state
employer and State Bargaining Unit 8, the CDF firefighters, and
would provide that the provisions of any memorandum of understanding
that require the expenditure of funds shall become effective even if
the provisions of the memorandum of understanding are approved by the
Legislature in legislation other than the annual Budget Act.
(2) Existing law contains various provisions relating to civil
service and employer-employee relations between the state and its
employees, and contains comparable provisions that apply to state
employees in State Bargaining Unit 5, 6, or 16.
This bill would enact comparable provisions, with respect to
appointments from a general reemployment list, reinstatements,
probationary periods, involuntary transfers, layoffs, demotions,
minor discipline, nonmerit statutory appeal hearings, and salary
adjustments.
(3) Existing law, with specified exceptions, provides that all
contracts entered into by any state agency for the hiring or purchase
of a variety of goods and services, including equipment, supplies,
textbooks, and repair or maintenance, are void unless approved by the
Department of General Services. Existing law exempts contracts
entered into by the Department of Personnel Administration for
employee benefits, training services, or both, for state employees in
State Bargaining Unit 16 from the requirement of Department of
General Services approval.
This bill would exempt contracts entered into by the Department of
Personnel Administration for employee benefits, occupational health
and safety, training services, or any combination thereof, for state
employees in State Bargaining Unit 8 from the requirement of
Department of General Services approval. This bill would exempt
these contracts from provisions of the Public Contract Code that
relate to the state procurement of materials, supplies, equipment,
and services.
(4) The Public Employees' Retirement Law, contains the State Peace
Officers' and Firefighters' Defined Contribution Plan for state
peace officer or firefighter members in State Bargaining Unit 6 to
supplement the benefits provided under the Public Employees'
Retirement System. Assembly Bill 2472 establishes the State Peace
Officers' and Firefighters' Defined Contribution Plan Fund, which
funds are continuously appropriated for payments of the plan.
This bill would include state peace officers or firefighter
members in State Bargaining Unit 8 in that plan. The bill would
increase the service allowance limitation from 80% to 85% for members
of State Bargaining Unit 8 who retire on and after January 1, 1999,
and would establish a new retirement option consisting of a partial
distribution of the present value of the actuarial amount of
retirement allowances for those members. To the extent that this
bill would enlarge the class of beneficiaries who may receive
distributions from the State Peace Officers' and Firefighters'
Defined Contribution Plan Fund, this bill would make an
appropriation.
(5) Existing law, the Public Employees' Medical and Hospital Care
Act, provides health benefits plan coverage to public employees and
annuitants meeting the eligibility requirements prescribed by the
Board of Administration of the Public Employees' Retirement System.
This bill would revise the definition of "eligible employees" for
the purposes of the act as it applies to state employees in State
Bargaining Unit 8.
(6) Existing law, the State Employees' Dental Care Act, provides
dental care plan coverage to public employees and annuitants meeting
the eligibility requirements prescribed by the Board of
Administration of the Public Employees' Retirement System. Existing
law provides that notwithstanding particular provisions of the act,
state employees in State Bargaining Unit 6 or 16 may receive a
percentage of the employer's contribution payable for annuitants if
the employees are credited with 10 years of state service.
This bill would also provide that state employees in State
Bargaining Unit 8 may receive a percentage of the employer's
contribution payable for annuitants if the employees are credited
with 10 or more years of state service.
(7) This bill would declare that it is to take effect immediately
as an urgency statute.
Appropriation: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares that the purpose of
this act is to adopt an agreement pursuant to Section 3517 of the
Government Code entered into by the state employer and a recognized
employee organization and to make any necessary statutory changes in
health, retirement, salary, or other benefits to implement that
agreement.
SEC. 2. The provisions of the memorandum of understanding,
prepared pursuant to Section 3517.5 of the Government Code, and
entered into by the state employer and State Bargaining Unit 8, the
CDF Firefighters, and that require the expenditure of funds or
legislative action to permit their implementation, are hereby
approved for the purposes of Section 3517.6 of the Government Code.
SEC. 3. Any provision in a memorandum of understanding approved by
Section 2 that requires the expenditure of funds shall not take
effect unless funds for these provisions are specifically
appropriated by the Legislature. In the event that funds for these
provisions are not specifically appropriated by the Legislature, the
state employer and the affected employee organization shall meet and
confer to renegotiate over the affected provisions.
SEC. 4. Notwithstanding Section 3517.6 of the Government Code, the
provisions of any memorandum of understanding that requires the
expenditure of funds shall become effective even if the provisions of
the memorandum of understanding are approved by the Legislature in
legislation other than the annual Budget Act.
SEC. 5. Section 1094.5 of the Code of Civil Procedure is amended
to read:
1094.5. (a) Where the writ is issued for the purpose of inquiring
into the validity of any final administrative order or decision made
as the result of a proceeding in which by law a hearing is required
to be given, evidence is required to be taken, and discretion in the
determination of facts is vested in the inferior tribunal,
corporation, board, or officer, the case shall be heard by the court
sitting without a jury. All or part of the record of the proceedings
before the inferior tribunal, corporation, board, or officer may be
filed with the petition, may be filed with respondent's points and
authorities, or may be ordered to be filed by the court. Except when
otherwise prescribed by statute, the cost of preparing the record
shall be borne by the petitioner. Where the petitioner has proceeded
pursuant to Section 68511.3 of the Government Code and the Rules of
Court implementing that section and where the transcript is necessary
to a proper review of the administrative proceedings, the cost of
preparing the transcript shall be borne by the respondent. Where the
party seeking the writ has proceeded pursuant to Section 1088.5, the
administrative record shall be filed as expeditiously as possible,
and may be filed with the petition, or by the respondent after
payment of the costs by the petitioner, where required, or as
otherwise directed by the court. If the expense of preparing all or
any part of the record has been borne by the prevailing party, the
expense shall be taxable as costs.
(b) The inquiry in such a case shall extend to the questions
whether the respondent has proceeded without, or in excess of
jurisdiction; whether there was a fair trial; and whether there was
any prejudicial abuse of discretion. Abuse of discretion is
established if the respondent has not proceeded in the manner
required by law, the order or decision is not supported by the
findings, or the findings are not supported by the evidence.
(c) Where it is claimed that the findings are not supported by the
evidence, in cases in which the court is authorized by law to
exercise its independent judgment on the evidence, abuse of
discretion is established if the court determines that the findings
are not supported by the weight of the evidence. In all other cases,
abuse of discretion is established if the court determines that the
findings are not supported by substantial evidence in the light of
the whole record.
(d) Notwithstanding subdivision (c), in cases arising from private
hospital boards or boards of directors of districts organized
pursuant to The Local Hospital District Law, Division 23 (commencing
with Section 32000) of the Health and Safety Code or governing bodies
of municipal hospitals formed pursuant to Article 7 (commencing with
Section 37600) or Article 8 (commencing with Section 37650) of
Chapter 5 of Division 3 of Title 4 of the Government Code, abuse of
discretion is established if the court determines that the findings
are not supported by substantial evidence in the light of the whole
record. However, in all cases in which the petition alleges
discriminatory actions prohibited by Section 1316 of the Health and
Safety Code, and the plaintiff makes a preliminary showing of
substantial evidence in support of that allegation, the court shall
exercise its independent judgment on the evidence and abuse of
discretion shall be established if the court determines that the
findings are not supported by the weight of the evidence.
(e) Where the court finds that there is relevant evidence that, in
the exercise of reasonable diligence, could not have been produced
or that was improperly excluded at the hearing before respondent, it
may enter judgment as provided in subdivision (f) remanding the case
to be reconsidered in the light of that evidence; or, in cases in
which the court is authorized by law to exercise its independent
judgment on the evidence, the court may admit the evidence at the
hearing on the writ without remanding the case.
(f) The court shall enter judgment either commanding respondent to
set aside the order or decision, or denying the writ. Where the
judgment commands that the order or decision be set aside, it may
order the reconsideration of the case in the light of the court's
opinion and judgment and may order respondent to take such further
action as is specially enjoined upon it by law, but the judgment
shall not limit or control in any way the discretion legally vested
in the respondent.
(g) Except as provided in subdivision (h), the court in which
proceedings under this section are instituted may stay the operation
of the administrative order or decision pending the judgment of the
court, or until the filing of a notice of appeal from the judgment or
until the expiration of the time for filing the notice, whichever
occurs first. However, no such stay shall be imposed or continued if
the court is satisfied that it is against the public interest. The
application for the stay shall be accompanied by proof of service of
a copy of the application on the respondent. Service shall be made
in the manner provided by Title 5 (commencing with Section 405) of
Part 2 or Chapter 5 (commencing with Section 1010) of Title 14 of
Part 2. If an appeal is taken from a denial of the writ, the order
or decision of the agency shall not be stayed except upon the order
of the court to which the appeal is taken. However, in cases where a
stay is in effect at the time of filing the notice of appeal, the
stay shall be continued by operation of law for a period of 20 days
from the filing of the notice. If an appeal is taken from the
granting of the writ, the order or decision of the agency is stayed
pending the determination of the appeal unless the court to which the
appeal is taken shall otherwise order. Where any final
administrative order or decision is the subject of proceedings under
this section, if the petition shall have been filed while the penalty
imposed is in full force and effect, the determination shall not be
considered to have become moot in cases where the penalty imposed by
the administrative agency has been completed or complied with during
the pendency of the proceedings.
(h) (1) The court in which proceedings under this section are
instituted may stay the operation of the administrative order or
decision of any licensed hospital or any state agency made after a
hearing required by statute to be conducted under the Administrative
Procedure Act, as set forth in Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code,
conducted by the agency itself or an administrative law judge on the
staff of the Office of Administrative Hearings pending the judgment
of the court, or until the filing of a notice of appeal from the
judgment or until the expiration of the time for filing the notice,
whichever occurs first. However, the stay shall not be imposed or
continued unless the court is satisfied that the public interest will
not suffer and that the licensed hospital or agency is unlikely to
prevail ultimately on the merits. The application for the stay shall
be accompanied by proof of service of a copy of the application on
the respondent. Service shall be made in the manner provided by
Title 5 (commencing with Section 405) of Part 2 or Chapter 5
(commencing with Section 1010) of Title 14 of Part 2.
(2) The standard set forth in this subdivision for obtaining a
stay shall apply to any administrative order or decision of an agency
that issues licenses pursuant to Division 2 (commencing with Section
500) of the Business and Professions Code or pursuant to the
Osteopathic Initiative Act or the Chiropractic Initiative Act. With
respect to orders or decisions of other state agencies, the standard
in this subdivision shall apply only when the agency has adopted the
proposed decision of the administrative law judge in its entirety or
has adopted the proposed decision but reduced the proposed penalty
pursuant to subdivision (b) of Section 11517 of the Government Code;
otherwise the standard in subdivision (g) shall apply.
(3) If an appeal is taken from a denial of the writ, the order or
decision of the hospital or agency shall not be stayed except upon
the order of the court to which the appeal is taken. However, in
cases where a stay is in effect at the time of filing the notice of
appeal, the stay shall be continued by operation of law for a period
of 20 days from the filing of the notice. If an appeal is taken from
the granting of the writ, the order or decision of the hospital or
agency is stayed pending the determination of the appeal unless the
court to which the appeal is taken shall otherwise order. Where any
final administrative order or decision is the subject of proceedings
under this section, if the petition shall have been filed while the
penalty imposed is in full force and effect, the determination shall
not be considered to have become moot in cases where the penalty
imposed by the administrative agency has been completed or complied
with during the pendency of the proceedings.
(i) Any administrative record received for filing by the clerk of
the court may be disposed of as provided in Sections 1952, 1952.2,
and 1952.3.
(j) Effective January 1, 1996, this subdivision shall apply to
state employees in State Bargaining Unit 5. Effective June 1, 1998,
this subdivision shall apply to state employees in State Bargaining
Unit 16. This subdivision shall apply to state employees in State
Bargaining Unit 8. For purposes of this section, the court is not
authorized to review any disciplinary decisions reached pursuant to
Section 19576.1, 19576.2, or 19576.5 of the Government Code.
SEC. 6. Section 3517.6 of the Government Code is amended to read:
3517.6. (a) (1) In any case where the provisions of Section 70031
of the Education Code, or subdivision (i) of Section 3513, or
Section 14876, 18714, 19080.5, 19100, 19143, 19261, 19818.16,
19819.1, 19820, 19822, 19824, 19826, 19827, 19828, 19829, 19830,
19831, 19832, 19833, 19834, 19835, 19836, 19837, 19838, 19839, 19840,
19841, 19842, 19843, 19844, 19845, 19846, 19847, 19848, 19849,
19849.1, 19849.4, 19850.1, 19850.2, 19850.3, 19850.4, 19850.5,
19850.6, 19851, 19853, 19854, 19856, 19856.1, 19858.1, 19858.2,
19859, 19860, 19861, 19862, 19862.1, 19863, 19863.1, 19864, 19866,
19869, 19870, 19871, 19871.1, 19872, 19873, 19874, 19875, 19876,
19877, 19877.1, 19878, 19879, 19880, 19880.1, 19881, 19882, 19883,
19884, 19885, 19887, 19887.1, 19887.2, 19888, 19990, 19991, 19991.1,
19991.2, 19991.3, 19991.4, 19991.5, 19991.6, 19991.7, 19992, 19992.1,
19992.2, 19992.3, 19992.4, 19993, 19994.1, 19994.2, 19994.3,
19994.4, 19995, 19995.1, 19995.2, 19995.3, 19996.1, 19996.2, 19998,
19998.1, 20796, 21600, 21602, 21604, 21605, 22825, or 22825.1 are in
conflict with the provisions of a memorandum of understanding, the
memorandum of understanding shall be controlling without further
legislative action.
(2) Notwithstanding paragraph (1), this paragraph shall apply only
to state employees in State Bargaining Unit 5. In any case where
the provisions of Section 70031 of the Education Code, or subdivision
(i) of Section 3513, or Section 14876, 18714, 19080.5, 19100, 19143,
19261, 19576.1, 19818.16, 19819.1, 19820, 19822, 19824, 19826,
19827, 19828, 19829, 19830, 19831, 19832, 19833, 19834, 19835, 19836,
19837, 19838, 19839, 19840, 19841, 19842, 19843, 19844, 19845,
19846, 19847, 19848, 19849, 19849.1, 19849.4, 19850.1, 19850.2,
19850.3, 19850.4, 19850.5, 19850.6, 19851, 19853, 19854, 19856,
19856.1, 19858.1, 19858.2, 19859, 19860, 19861, 19862, 19862.1,
19863, 19863.1, 19864, 19866, 19869, 19870, 19871, 19871.1, 19872,
19873, 19874, 19875, 19876, 19877, 19877.1, 19878, 19879, 19880,
19880.1, 19881, 19882, 19883, 19884, 19885, 19887, 19887.1, 19887.2,
19888, 19990, 19991, 19991.1, 19991.2, 19991.3, 19991.4, 19991.5,
19991.6, 19991.7, 19992, 19992.1, 19992.2, 19992.3, 19992.4, 19993,
19994.1, 19994.2, 19994.3, 19994.4, 19995, 19995.1, 19995.2, 19995.3,
19996.1, 19996.2, 19998, 19998.1, 20796, 21600, 21602, 21604, 21605,
22825, or 22825.1 are in conflict with the provisions of a
memorandum of understanding, the memorandum of understanding shall be
controlling without further legislative action.
(3) Notwithstanding paragraph (1), this paragraph shall apply to
state employees in State Bargaining Unit 8 or 16. In any case where
the provisions of Section 70031 of the Education Code, or subdivision
(i) of Section 3513, or Section 14876, 18714, 19080.5, 19100, 19143,
19261, 19576.1, 19582.1, 19175.1, 19818.16, 19819.1, 19820, 19822,
19824, 19826, 19827, 19828, 19829, 19830, 19831, 19832, 19833, 19834,
19835, 19836, 19837, 19838, 19839, 19840, 19841, 19842, 19843,
19844, 19845, 19846, 19847, 19848, 19849, 19849.1, 19849.4, 19850.1,
19850.2, 19850.3, 19850.4, 19850.5, 19850.6, 19851, 19853, 19854,
19856, 19856.1, 19858.1, 19858.2, 19859, 19860, 19861, 19862,
19862.1, 19863, 19863.1, 19864, 19866, 19869, 19870, 19871, 19871.1,
19872, 19873, 19874, 19875, 19876, 19877, 19877.1, 19878, 19879,
19880, 19880.1, 19881, 19882, 19883, 19884, 19885, 19887, 19887.1,
19887.2, 19888, 19990, 19991, 19991.1, 19991.2, 19991.3, 19991.4,
19991.5, 19991.6, 19991.7, 19992, 19992.1, 19992.2, 19992.3, 19992.4,
19993, 19994.1, 19994.2, 19994.3, 19994.4, 19995, 19995.1, 19995.2,
19995.3, 19996.1, 19996.2, 19998, 19998.1, 20796, 21600, 21602,
21604, 21605, 22825, or 22825.1 are in conflict with the provisions
of a memorandum of understanding, the memorandum of understanding
shall be controlling without further legislative action.
(b) In any case where the provisions of Section 19997.2, 19997.3,
19997.8, 19997.9, 19997.10, 19997.11, 19997.12, 19997.13, or 19997.14
are in conflict with the provisions of a memorandum of
understanding, the terms of the memorandum of understanding shall be
controlling unless the State Personnel Board finds those terms to be
inconsistent with merit employment principles as provided for by
Article VII of the California Constitution. Where this finding is
made, the provisions of the Government Code shall prevail until those
affected sections of the memorandum of understanding are
renegotiated to resolve the inconsistency. If any provision of the
memorandum of understanding requires the expenditure of funds, those
provisions of the memorandum of understanding shall not become
effective unless approved by the Legislature in the annual Budget
Act. If any provision of the memorandum of understanding requires
legislative action to permit its implementation by amendment of any
section not cited above, those provisions of the memorandum of
understanding shall not become effective unless approved by the
Legislature.
SEC. 7. Section 18670 of the Government Code is amended to read:
18670. (a) The board may hold hearings and make investigations
concerning all matters relating to the enforcement and effect of this
part and rules prescribed hereunder. It may inspect any state
institution, office, or other place of employment affected by this
part to ascertain whether this part and the board rules are obeyed.
The board shall make investigations and hold hearings at the
direction of the Governor or the Legislature or upon the petition of
an employee or a citizen concerning the enforcement and effect of
this part and to enforce the observance of Article VII of the
Constitution and of this part and the rules made under this part.
(b) Effective January 1, 1996, this subdivision shall apply only
to state employees in State Bargaining Unit 5. For purposes of
subdivision (a), any discipline, as defined by Section 19576.1, is
not subject to either a board investigation or hearing. Board review
shall be limited to acceptance or rejection of discipline imposed
pursuant to Section 19576.1.
(c) Effective June 1, 1998, this subdivision shall apply only to
state employees in State Bargaining Unit 16. For the purposes of
subdivision (a), any discipline, as defined by Section 19576.2, is
not subject to either a board investigation or hearing.
(d) This subdivision shall apply only to state employees in State
Bargaining Unit 8. For the purposes of subdivision (a), any
discipline, as defined by the memorandum of understanding or Section
19576.5, is not subject to either a board investigation or hearing.
SEC. 8. Section 18903 of the Government Code is amended to read:
18903. (a) (1) For each class there shall be maintained a general
reemployment list consisting of the names of all persons who have
occupied positions with probationary or permanent status in the class
and who have been legally laid off or demoted in lieu of layoff.
(2) Notwithstanding paragraph (1), this paragraph shall apply to
state employees in State Bargaining Unit 5, 6, 8, or 16. For each
entry level class there shall be maintained a general reemployment
list consisting of the names of all persons who have occupied
positions with probationary or permanent status in the class and who
have been legally laid off, demoted in lieu of layoff, or transferred
in lieu of layoff.
(b) Within one year from the date of his or her resignation in
good standing, or his or her voluntary demotion, the name of an
employee who had probationary or permanent status may be placed on
the general reemployment list with the consent of the appointing
power and the board. The general reemployment list may also contain
the names of persons placed thereon by the board in accordance with
other provisions of this part.
SEC. 9. Section 19056.5 of the Government Code is amended to read:
19056.5. (a) Notwithstanding any other provision in this part and
except as provided in subdivision (b), if the appointment is to be
made from a general reemployment list, the names of the three persons
with the highest standing on the list shall be certified to the
appointing power.
(b) Notwithstanding subdivision (a), this subdivision shall apply
to state employees in State Bargaining Unit 6, 8, or 16. If the
appointment is to be made from a general reemployment list, the name
of the person with the highest standing on the list shall be
certified to the appointing power.
SEC. 10. Section 19141 of the Government Code is amended to read:
19141. (a) This section applies only to a permanent employee, or
an employee who previously had permanent status and who, since that
permanent status, has had no break in the continuity of his or her
state service due to a permanent separation. As used in this
section, "former position" is defined as in Section 18522, or, if the
appointing power to which reinstatement is to be made and the
employee agree, a vacant position in any department, commission, or
state agency for which he or she is qualified at substantially the
same level.
(b) Within the periods of time specified below, an employee who
vacates a civil service position to accept an appointment to an
exempt position shall be reinstated to his or her former position at
the termination either by the employee or appointing power of the
exempt appointment, provided he or she (1) accepted the appointment
without a break in the continuity of state service, and (2) requests
in writing reinstatement of the appointing power of his or her former
position within 10 working days after the effective date of the
termination.
(c) The reinstatement may be requested by the employee only within
the following periods of time:
(1) At any time after the effective date of the exempt appointment
if the employee was appointed under one of the following:
(A) Subdivision (a), (b), (c), (d), (e), (f), (g), or (m) of
Section 4 of Article VII of the California Constitution.
(B) Section 2.1 of Article IX of the California Constitution.
(C) Section 22 of Article XX of the California Constitution.
(D) To an exempt position under the same appointing power as the
former position even though a shorter period of time may be otherwise
specified for that appointment.
(2) Within six months after the effective date of the exempt
appointment if appointed under subdivision (h), (i), (k), or (l) of
Section 4 of Article VII of the California Constitution.
(3) (A) Within four years after the effective date of an exempt
appointment if appointed under any other authority.
(B) Within four years after the effective date of an exempt
appointment if appointed under any other authority. Notwithstanding
subparagraph (A), this subparagraph shall apply to state employees in
State Bargaining Unit 5, 6, 8, or 16.
(d) An employee who vacates his or her civil service position to
accept an assignment as a member, inmate, or patient helper under
subdivision (j) of Section 4 of Article VII of the California
Constitution shall not have a right to reinstatement.
(e) An employee who is serving under an exempt appointment retains
a right of reinstatement when he or she accepts an extension of that
exempt appointment or accepts a new exempt appointment, provided the
extension or new appointment is made within the specified
reinstatement time limit and there is no break in the continuity of
state service. The period for which that right is retained is for
the period applicable to the extended or new exempt appointment as if
that appointment had been made on the date of the initial exempt
appointment.
(f) When an employee exercises his or her right of reinstatement
and returns to his or her former position, the service while under an
exempt appointment shall be deemed to be time served in the former
position for the purpose of determining his or her eligibility for
merit salary increases.
(g) If the termination of an exempt appointment is for a reason
contained in Section 19997 and the employee does not have a right to
reinstatement, he or she shall have his or her name placed on the
departmental and general reemployment lists for the class of his or
her former position.
SEC. 11. Section 19142 of the Government Code is amended to read:
19142. (a) Every person accepts and holds a position in the state
civil service subject to mandatory reinstatement of another person.
(b) (1) Upon reinstatement of a person any necessary separations
are effected under the provisions of Section 19997.3 governing layoff
and demotion except that (A) an employee who is not to be separated
from state service need not receive advance notification as provided
in Section 19997.13, and (B) seniority shall not be counted as
provided in Section 19997.3 when this would result in the layoff of
the person who has the reinstatement right. Under such a
circumstance, qualifying service in classes at substantially the same
or higher salary level is the only state service that shall be
counted for purposes of determining who is to be separated.
(2) Notwithstanding paragraph (1), this paragraph shall apply to
state employees in State Bargaining Unit 5, 6, 8, or 16. Upon
reinstatement of a person any necessary separations are effected
under Section 19997.3 governing layoff and demotion except that an
employee who is not to be separated from state service need not
receive advance notification as provided in Section 19997.13.
SEC. 12. Section 19170.1 of the Government Code is amended to
read:
19170.1. (a) Notwithstanding Section 19170 for state employees in
State Bargaining Unit 6, 8, or 16, the board shall establish for
each class the length of the probationary period. The probationary
period that shall be served upon appointment shall be not less than
six months nor more than two years.
(b) The board may provide by rule: (1) for increasing the length
of an individual probationary period by adding thereto periods of
time during which an employee, while serving as a probationer, is
absent from his or her position; or (2) for requiring an additional
period not to exceed the length of the original probationary period
when a probationary employee returns after an extended period of
absence and the remainder of the probationary period is insufficient
to evaluate his or her current performance.
SEC. 13. Section 19173.1 of the Government Code is amended to
read:
19173.1. (a) Effective June 1, 1998, notwithstanding Section
19173, this section shall apply to state employees in State
Bargaining Unit 16. This section also shall apply to state employees
in State Bargaining Unit 8.
(b) Any probationer may be rejected by the appointing power during
the probationary period for reasons relating to the probationer's
qualifications, the good of the service, or failure to demonstrate
merit, efficiency, and fitness.
(c) A rejection during probationary period is effected by the
service upon the probationer of a written notice of rejection that
shall include: (1) an effective date for the rejection that shall
not be later than the last day of the probationary period; and (2) a
statement of the reasons for the rejection. Service of the notice
shall be made prior to the effective date of the rejection. Notice
of rejection shall be served prior to the conclusion of the
prescribed probationary period. The probationary period may be
extended when necessary to provide the full notice
period required by board rule. Within 15
days after the effective date of the rejection, a copy thereof shall
be filed with the board.
SEC. 14. Section 19175.3 of the Government Code is amended to
read:
19175.3. (a) Notwithstanding Section 19175, this section shall
apply to state employees in State Bargaining Unit 8 or 16.
(b) The board at the written request of a rejected probationer,
filed within 15 calendar days of the effective date of rejection,
shall only review allegations that the rejection was made for reasons
of discrimination as defined for the purposes of subdivision (a) of
Section 19702, fraud, or political patronage. If the board
determines that the rejected probationer has stated a prima face case
of discrimination, fraud, or political patronage, the board may
investigate the case with or without a hearing and do any one of the
following:
(1) Affirm the action of the appointing power.
(2) Modify the action of the appointing power.
(3) Restore the name of the rejected probationer to the employment
list for certification to any position within the class, provided
that his or her name shall not be certified to the agency by which he
or she was rejected, except with the concurrence of the appointing
power thereof.
(4) Restore the rejected probationer to the position from which he
or she was rejected, but this shall be done only if the board
determines that there is substantial evidence to support that the
rejection was made for reasons of discrimination as defined for the
purposes of subdivision (a) of Section 19702, fraud, or political
patronage. At any such investigation or hearing the rejected
probationer shall have the burden of proof; subject to rebuttal by
him or her, it shall be presumed that the rejection was free from
discrimination, fraud, and political patronage, and that the
statement of reasons therefor in the notice of rejection is true.
SEC. 15. Section 19570.1 of the Government Code is amended to
read:
19570.1. Notwithstanding Section 19570, this section shall apply
to state employees in State Bargaining Unit 8 or 16. As used in this
article, "disciplinary action" means dismissal, demotion,
suspension, or other disciplinary action. "Disciplinary action" does
not include a written or oral reprimand taken against an employee.
Reprimands may be considered for the purpose of progressive
discipline. This article shall not apply to any disciplinary action
affecting managerial employees subject to Article 2 (commencing with
Section 19590), except as provided in Sections 19590.5, 19592, and
19592.2.
SEC. 16. Section 19572.1 of the Government Code is amended to
read:
19572.1. (a) Notwithstanding Section 19572, this section shall
apply to state employees in State Bargaining Unit 8 or 16.
(b) Disciplinary actions pursuant to Section 19576.2 or 19576.5
shall be for just cause or one or more of the following causes for
discipline:
(1) Fraud in securing appointment.
(2) Incompetency.
(3) Inefficiency.
(4) Inexcusable neglect of duty.
(5) Insubordination.
(6) Dishonesty.
(7) Drunkenness on duty.
(8) Intemperance.
(9) Addiction to the use of controlled substances.
(10) Inexcusable absence without leave.
(11) Conviction of a felony or conviction of a misdemeanor
involving moral turpitude. A plea or verdict of guilty, or a
conviction following a plea of nolo contendere, to a charge of a
felony of any offense involving moral turpitude is deemed to be a
conviction within the meaning of this section.
(12) Immorality.
(13) Discourteous treatment of the public or other employees.
(14) Improper political activity.
(15) Willful disobedience.
(16) Misuse of state property.
(17) Violation of this part or board rule.
(18) Violation of the prohibitions set forth in accordance with
Section 19990.
(19) Refusal to take and subscribe any oath or affirmation that is
required by law in connection with the employment.
(20) Other failure of good behavior either during or outside of
duty hours that is of such a nature that it causes discredit to the
appointing authority of the person's employment.
(21) Any negligence, recklessness, or intentional act that results
in the death of a patient of a state hospital serving the mentally
disabled or the developmentally disabled.
(22) The use during duty hours, for training or target practice,
of any material that is not authorized therefor by the appointing
power.
(23) Unlawful discrimination, including harassment, on the basis
of race, religious creed, color, national origin, ancestry,
disability, marital status, sex, or age, against the public or other
employees while acting in the capacity of a state employee.
(24) Unlawful retaliation against any other state officer or
employee or member of the public who in good faith reports,
discloses, divulges, or otherwise brings to the attention of, the
Attorney General, or any other appropriate authority, any facts or
information relative to actual or suspected violation of any law of
this state or the United States occurring on the job or directly
related thereto.
(c) If provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5, the memorandum of understanding shall be controlling
without further legislative action, except that if those provisions
of a memorandum of understanding require the expenditure of funds,
the provision shall not become effective unless approved by the
Legislature in the annual Budget Act.
SEC. 17. Section 19574 of the Government Code is amended to read:
19574. (a) The appointing power, or its authorized
representative, may take adverse action against an employee for one
or more of the causes for discipline specified in this article.
Adverse action is valid only if a written notice is served on the
employee prior to the effective date of the action, as defined by
board rule. The notice shall be served upon the employee either
personally or by mail and shall include: (1) a statement of the
nature of the adverse action; (2) the effective date of the action;
(3) a statement of the reasons therefor in ordinary language; (4) a
statement advising the employee of the right to answer the notice
orally or in writing; and (5) a statement advising the employee of
the time within which an appeal must be filed. The notice shall be
filed with the board not later than 15 calendar days after the
effective date of the adverse action.
(b) Effective January 1, 1996, this subdivision shall apply only
to state employees in State Bargaining Unit 5. This section shall
not apply to discipline as defined by Section 19576.1.
(c) Effective June 1, 1998, this subdivision shall apply only to
state employees in State Bargaining Unit 16. This section shall not
apply to minor discipline as defined by Section 19576.2.
(d) This subdivision shall apply only to state employees in State
Bargaining Unit 8. This section shall not apply to minor discipline,
as defined by Section 19576.5 or a memorandum of understanding.
SEC. 18. Section 19576.5 is added to the Government Code, to read:
19576.5. Notwithstanding Section 19576, this section shall apply
only to state employees in State Bargaining Unit 8.
(a) Minor discipline is a suspension without pay for five days or
less or up to a 5-percent reduction in pay for five months or less.
Whenever an answer is filed by an employee who is subject to minor
discipline, and the memorandum of understanding for state employees
in State Bargaining Unit 8 has expired, the state employer shall
follow the minor discipline appeal procedures contained in the
expired memorandum of understanding for state employees in State
Bargaining Unit 8 until a successor agreement is negotiated between
Department of Personnel Administration and the exclusive
representative. However, if an employee receives one of the cited
actions in more than three instances in any 12-month period, he or
she shall, upon each additional action within the same 12-month
period, be afforded a hearing before the State Personnel Board if he
or she files an answer to the action.
(b) The State Personnel Board shall not have the authority as
stated in subdivision (a) with regard to written or oral reprimands.
Reprimands shall not be grievable or appealable by the receiving
employee by any means. Rejections on probation shall not be
grievable or appealable by the receiving employee by any means except
as provided in Section 19175.1.
(c) The appointing power shall not impose any discipline in a
manner that is inconsistent with "salary basis test" against an
employee employed in an executive, administrative, or professional
capacity and whose duties exempt him or her from the wage and hour
provisions of the federal Fair Labor Standards Act as set forth
pursuant to Section 13(a)(1) of the Fair Labor Standards Act of 1938,
as amended (29 U.S.C. Sec. 213(a)(1)), and in Part 54 of Title 29 of
the Code of Federal Regulations, as defined and delimited on the
effective date of this section, and as those provisions may be
amended in the future by the Administrator of the Wage and Hour
Division of the United States Department of Labor.
(d) Disciplinary action taken pursuant to this section shall not
be subject to the following provisions: 19180, 19574.1, 19574.2,
19575, 19575.5, 19579, 19580, 19581, 19581.5, 19582, 19583, and
19587, and State Personnel Board Rules 51.1 to 51.9, inclusive, 52,
and 52.1 to 52.5, inclusive.
(e) Notwithstanding any other law or rule, if the provisions of
this section are in conflict with the provisions of the memorandum of
understanding reached pursuant to Section 3517.5, the memorandum of
understanding shall be controlling without further legislative
action, except that if the provisions of a memorandum of
understanding require the expenditure of funds, the provisions shall
not become effective unless approved by the Legislature in the annual
Budget Act.
(f) If the State Personnel Board establishes regulations to
implement this section, the regulations shall be consistent with the
expired memorandum of understanding for state employees in State
Bargaining Unit 8 and the Ralph C. Dills Act (Part 10.3 (commencing
with Section 3512) of Division 4 of Title 1).
SEC. 19. Section 19582 of the Government Code is amended to read:
19582. (a) Hearings may be held by the board, or by any
authorized representative, but the board shall render the decision
that in its judgment is just and proper.
During a hearing, after the appointing authority has completed the
opening statement or the presentation of evidence, the employee,
without waiving his or her right to offer evidence in the event the
motion is not granted, may move for a dismissal of the charges.
If it appears that the evidence presented supports the granting of
the motion as to some but not all of the issues involved in the
action, the board or the authorized representative shall grant the
motion as to those issues and the action shall proceed as to the
issues remaining. Despite the granting of the motion, no judgment
shall be entered prior to a final determination of the action on the
remaining issues, and shall be subject to final review and approval
by the board.
(b) If a contested case is heard by an authorized representative,
he or she shall prepare a proposed decision in a form that may be
adopted as the decision in the case. A copy of the proposed decision
shall be filed by the board as a public record and furnished to each
party within 10 days after the proposed decision is filed with the
board. The board itself may adopt the proposed decision in its
entirety, may remand the proposed decision, or may reduce the adverse
action set forth therein and adopt the balance of the proposed
decision.
(c) If the proposed decision is not remanded or adopted as
provided in subdivision (b), each party shall be notified of the
action, and the board itself may decide the case upon the record,
including the transcript, with or without taking any additional
evidence, or may refer the case to the same or another authorized
representative to take additional evidence. If the case is so
assigned to an authorized representative, he or she shall prepare a
proposed decision as provided in subdivision (b) upon the additional
evidence and the transcript and other papers that are part of the
record of the prior hearing. A copy of the proposed decision shall
be furnished to each party. The board itself shall decide no case
provided for in this subdivision without affording the parties the
opportunity to present oral and written argument before the board
itself. If additional oral evidence is introduced before the board
itself, no board member may vote unless he or she heard the
additional oral evidence.
(d) In arriving at a decision or a proposed decision, the board or
its authorized representative may consider any prior suspension or
suspensions of the appellant by authority of any appointing power, or
any prior proceedings under this article.
(e) The decision shall be in writing and contain findings of fact
and the adverse action, if any. The findings may be stated in the
language of the pleadings or by reference thereto. Copies of the
decision shall be served on the parties personally or by mail.
(f) This section shall not apply to minor discipline, as defined
in a memorandum of understanding or by Section 19576.2, for state
employees in State Bargaining Unit 16.
(g) This section shall not apply to minor discipline, as defined
in a memorandum of understanding or by Section 19576.5 for state
employees in State Bargaining Unit 8.
SEC. 20. Section 19582.1 of the Government Code is amended to
read:
19582.1. Notwithstanding Section 19582, this section shall apply
to state employees in State Bargaining Unit 8 or 16.
(a) The board's review of decisions of minor discipline, as
defined by a memorandum of understanding or by Section 19576.2 or
19576.5, respectively, shall be limited to either adopting the
penalty of the proposed decision or revoking the disciplinary action
in its entirety.
(b) The board's review of decisions of discipline, including minor
discipline, shall not impose any discipline against an employee that
would jeopardize the employee's status under the federal Fair Labor
Standards Act, as set forth pursuant to Section 13(a)(1) of The Fair
Labor Standards Act of 1938, as amended (Title 29, Section 213(a)(1),
United States Code) and in Part 54 of Title 29 of the Code of
Federal Regulations, as defined and delimited on the effective date
of this section and as those provisions maybe amended in the future.
(c) If provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5, the memorandum of understanding shall be controlling
without further legislative action, except that if such provisions of
a memorandum of understanding require the expenditure of funds, the
provision shall not become effective unless approved by the
Legislature in the annual Budget Act.
SEC. 21. Section 19582.6 of the Government Code is amended to
read:
19582.6. (a) Effective June 1, 1998, notwithstanding Section
19582.5, this section shall apply to state employees in State
Bargaining Unit 16. Notwithstanding Section 19582.5, this section
also shall apply to state employees in State Bargaining Unit 8.
(b) The board may designate certain of its decisions as
precedents. Precedential decisions shall not be subject to Chapter
3.5 (commencing with Section 11340) of Part 1 of Division 3. The
board may provide by rule for the reconsideration of a previously
issued decision to determine whether or not it shall be designated as
a precedent decision. All decisions designated as precedents shall
be published in a manner determined by the board.
(c) For the purpose of this section, a decision reached pursuant
to Section 19576.2 is not subject to board precedential decision, and
the board may not adopt that decision as a precedential decision.
SEC. 22. Section 19702 of the Government Code is amended to read:
19702. (a) A person shall not be discriminated against under this
part because of sex, race, religious creed, color, national origin,
ancestry, marital status, physical disability, or mental disability.
A person shall not be retaliated against because he or she has
opposed any practice made an unlawful employment practice, or made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this part. For purposes
of this article, "discrimination" includes harassment. This
subdivision is declaratory of existing law.
(b) As used in this section, "physical disability" includes, but
is not limited to, impairment of sight, hearing, or speech, or
impairment of physical ability because of amputation or loss of
function or coordination, or any other health impairment that
requires special education or related services.
(c) As used in this section, "mental disability" includes, but is
not limited to, any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities.
(d) Notwithstanding subdivisions (b) and (c), if the definition of
disability used in the Americans with Disabilities Act of 1990
(Public Law 101-336) would result in broader protection of the civil
rights of individuals with a mental disability or physical
disability, as defined in subdivision (b) or (c), then that broader
protection shall be deemed incorporated by reference into, and shall
prevail over conflicting provisions of, the definitions in
subdivisions (b) and (c). The definitions of subdivisions (b) and
(c) shall not be deemed to refer to or include conditions excluded
from the federal definition of "disability" pursuant to Section 511
of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec.
12211).
(e) If the board finds that a person has engaged in discrimination
under this part, and it appears that this practice consisted of acts
described in Section 243.4, 261, 262, 286, 288, 288a, or 289 of the
Penal Code, the board, with the consent of the complainant, shall
provide the local district attorney's office with a copy of its
decision and order.
(f) (1) If the board finds that discrimination has occurred in
violation of this part, the board shall issue and cause to be served
on the appointing authority an order requiring the appointing
authority to cause the discrimination to cease and desist and to take
any action, including, but not limited to, hiring, reinstatement, or
upgrading of employees, with or without backpay, and compensatory
damages, which, in the judgment of the board, will effectuate the
purposes of this part. Consistent with this authority, the board may
establish rules governing the award of compensatory damages. The
order shall include a requirement of reporting the manner of
compliance.
(2) Notwithstanding paragraph (1), this paragraph shall apply to
state employees in State Bargaining Unit 6, 8, or 16. If the board
finds that discrimination has occurred in violation of this part, the
board shall issue and cause to be served on the appointing authority
an order requiring the appointing authority to cause the
discrimination to cease and desist and to take any action, including,
but not limited to, hiring, reinstatement, or upgrading of
employees, with or without backpay, adding additional seniority, and
compensatory damages, which, in the judgment of the board, will
effectuate the purposes of this part. Consistent with this
authority, the board may establish rules governing the award of
compensatory damages. The order shall include a requirement of
reporting the manner of compliance.
(g) Any person claiming discrimination within the state civil
service may submit a complaint that shall be in writing and set forth
the particulars of the alleged discrimination, the name of the
appointing authority, the persons alleged to have committed the
unlawful discrimination, and any other information that may be
required by the board. The complaint shall be filed with the
appointing authority or, in accordance with board rules, with the
board itself.
(h) (1) Complaints shall be filed within one year of the alleged
unlawful discrimination or the refusal to act in accordance with this
section, except that this period may be extended for not to exceed
90 days following the expiration of that year, if a person allegedly
aggrieved by unlawful discrimination first obtained knowledge of the
facts of the alleged unlawful discrimination after the expiration of
one year from the date of its occurrence. Complaints of
discrimination in adverse actions or rejections on probation shall be
filed in accordance with Sections 19175 and 19575.
(2) Effective June 1, 1998, notwithstanding paragraph (1), this
paragraph shall apply only to state employees in State Bargaining
Unit 16. Complaints shall be filed within one year of the alleged
unlawful discrimination or the refusal to act in accordance with this
section, except that this period may be extended for not to exceed
90 days following the expiration of that year, if a person allegedly
aggrieved by unlawful discrimination first obtained knowledge of the
facts of the alleged unlawful discrimination after the expiration of
one year from the date of its occurrence. Complaints of
discrimination in disciplinary actions defined in Section 19576.2
shall be filed in accordance with that section. Complaints of
discrimination in all other disciplinary actions shall be filed in
accordance with Section 19575. Complaints of discrimination in
rejections on probation shall be filed in accordance with Section
19175.3.
(3) Notwithstanding paragraph (1), this paragraph shall apply only
to state employees in State Bargaining Unit 8. Complaints shall be
filed within one year of the alleged unlawful discrimination or the
refusal to act in accordance with this section, except that this
period may be extended for not to exceed 90 days following the
expiration of that year, if a person allegedly aggrieved by unlawful
discrimination first obtained knowledge of the facts of the alleged
unlawful discrimination after the expiration of one year from the
date of its occurrence. Complaints of discrimination in disciplinary
actions defined in Section 19576.5 shall be filed in accordance with
that section. Complaints of discrimination in all other
disciplinary actions shall be filed in accordance with Section 19575.
Complaints of discrimination in rejections on probation shall be
filed in accordance with Section 19175.3.
(i) (1) When an employee of the appointing authority refuses, or
threatens to refuse, to cooperate in the investigation of a complaint
of discrimination, the appointing authority may seek assistance from
the board. The board may provide for direct investigation or
hearing of the complaint, the use of subpoenas, or any other action
which will effect the purposes of this section.
(2) This subdivision shall not apply to complaints of
discrimination filed in accordance with Section 19576.2.
SEC. 23. Section 19786 of the Government Code is amended to read:
19786. (a) When a civil service employee has been reinstated
after military service in accordance with Section 19780, and any
question arises relative to his or her ability or inability for any
reason arising out of the military service to perform the duties of
the position to which he or she has been reinstated, the board shall,
upon the request of the appointing power or of the employee, hear
the matter and may on its own motion or at the request of either
party take any and all necessary testimony of every nature necessary
to a decision on the question.
(b) If the board finds that the employee is not able for any
reason arising out of the military service to carry out the usual
duties of the position he or she then holds, it shall order the
employee placed in a position in which the board finds he or she is
capable of performing the duties in the same class or a comparable
class in the same or any other state department, bureau, board,
commission, or office under this part and the rules of the board
covering transfer of an employee from a position under the
jurisdiction of one appointing power to a position under the
jurisdiction of another appointing power, without the consent of the
appointing powers, where a vacancy may be made available to him or
her under this part and the rules of the board, but in no event shall
the transfer constitute a promotion within the meaning of this part
and the rules of the board.
(c) (1) If a layoff is made necessary to place a civil service
employee in a position in the same class or a comparable class in
accordance with this section, the layoff shall be made under Section
19997.3, provided that no civil service employee who was employed
prior to September 16, 1940, shall be laid off as a result of the
placing of an employee in the same class or a comparable class under
this section.
(2) Notwithstanding paragraph (1), this paragraph shall apply to
state employees in State Bargaining Unit 5, 6, 8, or 16. If a layoff
is made necessary to place a civil service employee in a position in
the same class or a comparable class in accordance with this
section, the layoff shall be made under Section 19997.3.
(d) The board may order the civil service employee reinstated to
the department, bureau, board, commission, or office from which he or
she was transferred either upon request of the employee or the
appointing power from which transferred. The reinstatement may be
made after a hearing as provided in this section if the board finds
that the employee is at the time of the hearing able to perform the
duties of the position.
SEC. 24. Section 19798 of the Government Code is amended to read:
19798. In establishing order and subdivisions of layoff and
reemployment, the board, when it finds past discriminatory hiring
practices, shall by rule, adopt a process that provides that the
composition of the affected work force will be the same after the
completion of a layoff, as it was before the layoff procedure was
implemented. This section does not apply to state employees in State
Bargaining Unit 5, 6, 8, or 16.
SEC. 25. Section 19815.41 of the Government Code is amended to
read:
19815.41. (a) Notwithstanding subdivision (e) of Section 19815.4,
this section shall apply to state employees in State Bargaining Unit
5, 6, 8, or 16.
(b) The director shall hold nonmerit statutory appeal hearings,
subpoena witnesses, administer oaths, and conduct investigations in
accordance with Department of Personnel Administration Rule 599.859
(b)(2).
(c) The director may, at his or her discretion, hold hearings,
subpoena witnesses, administer oaths, or conduct investigations or
appeals concerning other matters relating to the department's
jurisdiction.
(d) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5, the memorandum of understanding shall be controlling
without further legislative action, except that if the provisions of
a memorandum of understanding require the expenditure of funds, the
provisions shall not become effective unless approved by the
Legislature in the annual Budget Act.
SEC. 26. Section 19816.2 of the Government Code is amended to
read:
19816.2. Notwithstanding any other provision of this part,
regulations and other provisions pertaining to the layoff or demotion
in lieu of layoff of civil service employees that are established or
agreed to by the department shall be subject to review by the State
Personnel Board for consistency with merit employment principles as
provided for by Article VII of the California Constitution. This
section does not apply to state employees in State Bargaining Unit 5,
6, 8, or 16.
SEC. 27. Section 19817 of the Government Code is amended to read:
19817. This article applies only with respect to regulations that
apply to state employees in State Bargaining Unit 5, 6, 8, or 16.
SEC. 28. Section 19826.1 of the Government Code is amended to
read:
19826.1. Notwithstanding Section 19826, effective June 1, 1998,
this section shall apply to state employees in State Bargaining Unit
16. Notwithstanding Section 19826, effective January 1, 1999, this
section also shall apply to state employees in State Bargaining Unit
6.
(a) The department shall establish and adjust salary ranges or
rates for each class of position in the state civil service subject
to any merit limits contained in Article VII of the California
Constitution. The salary range or rate shall be based on the
principle that like salaries shall be paid for comparable duties and
responsibilities. In establishing or changing these ranges or rates,
consideration shall be given to the prevailing rates for comparable
service in other public employment and in private business. The
department shall make no adjustments that require expenditures in
excess of existing appropriations that may be used for salary
increase purposes. The department may make a change in salary range
or rate retroactive to the date of application for the change.
(b) Notwithstanding any other provision of law, the department
shall not establish, adjust, or recommend a salary range or rate for
any employees in an appropriate unit where an employee organization
has been chosen as the exclusive representative pursuant to Section
3520.5.
(c) Notwithstanding Section 7550.5, on or before January 10 of
each year, the department shall prepare and submit to the parties
meeting and conferring pursuant to Section 3517 and to the
Legislature, a report containing the department's findings relating
to the salaries of employees in comparable occupations in private
industry and other governmental agencies.
(d) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5, the memorandum of understanding shall be controlling
without further legislative action, except that if the provisions of
a memorandum of understanding require the expenditure of funds, the
provisions shall not become effective unless approved by the
Legislature in the annual Budget Act.
SEC. 29. Section 19828 of the Government Code is amended to read:
19828. (a) Reasonable opportunity to be heard shall be provided
by the department to any employee affected by a change in the salary
range for the class of his or her position.
(b) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5, the memorandum of understanding shall be controlling
without further legislative action, except that if the provisions of
a memorandum of understanding require the expenditure of funds, the
provisions shall not become effective unless approved by the
Legislature in the annual Budget Act.
(c) Effective October 1, 1995, this section shall not apply to
state employees in State Bargaining Unit 5.
(d) Effective June 1, 1998, this section shall not apply to state
employees in State Bargaining Unit 16.
(e) Effective January 1, 1999, this section shall not apply to
state employees in State Bargaining Unit 8.
SEC. 30. Section 19829 of the Government Code is amended to read:
19829. (a) (1) Salary ranges shall consist of minimum and maximum
salary limits. The department shall provide for intermediate steps
within these limits to govern the extent of the salary adjustment
that an employee may receive at any one time; provided, that in
classes and positions with unusual conditions or hours of work or
where necessary to meet the provisions of state law recognizing
differential statutory qualifications within a profession or
prevailing rates and practices for comparable services in other
public employment and in private business, the department may
establish more than one salary range or rate or method of
compensation within a class.
(2) Effective October 1, 1995, notwithstanding paragraph (1), this
paragraph shall apply only to state employees in State Bargaining
Unit 5. Salary ranges shall consist of minimum and maximum salary
limits. Except where otherwise provided by law, the appointing power
or designee may authorize payment at any salary rate within these
limits to govern the extent of a salary adjustment that an employee
may receive for situations including, but not limited to, recruitment
and retention, extraordinary qualifications, and successful job
performance or promotion. Only those employees who are performing
successfully as determined by the appointing power or designee shall
receive periodic salary increases until the maximum of the salary
range is reached to recognize continuous successful performance or
value to the organization. Adjustments within the salary range
authorized in this paragraph may be either temporary or permanent.
The department may establish more than one salary range or rate or
method of compensation within a class.
(3) Effective June 1, 1998, notwithstanding paragraph (1), this
paragraph shall apply to state employees in State Bargaining Unit 16.
Effective January 1, 1999, notwithstanding paragraph (1), this
paragraph shall apply to state employees in State Bargaining Unit 8.
Salary ranges shall consist of minimum and maximum salary limits.
Except where otherwise provided by law, the appointing power or
designee, consistent with the regulations of the department, shall
determine the employee's salary rate upon appointment and may
authorize subsequent increases in these rates based on considerations
including, but not limited to, recruitment and retention,
extraordinary qualifications, and successful job performance or
promotion. Only those employees who are performing successfully as
determined by the appointing power or designee shall receive periodic
performance salary adjustments until the maximum of the salary range
is reached to recognize continuous successful performance or value
to the organization. Adjustments within the salary range authorized
in this section may be either temporary or permanent. The department
may establish more than one salary range or rate or method of
compensation within a class.
(b) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5, the memorandum of understanding shall be controlling
without further legislative action, except that if the provisions of
a memorandum of understanding require the expenditure of funds, the
provisions shall not become effective unless approved by the
Legislature in the annual Budget Act.
SEC. 31. Section 19832 of the Government Code is amended to read:
19832. (a) (1) After completion of the first year in a position,
each employee shall receive a merit salary adjustment equivalent to
one of the intermediate steps during each year when he or she meets
the standards of efficiency as the department by rule shall
prescribe.
(2) Effective October 1, 1995, notwithstanding paragraph (1), this
paragraph shall apply only to state employees in State Bargaining
Unit 5. Employees whose salary is not at the maximum of the salary
range shall receive a salary review and be considered for a salary
adjustment at least annually. Only those employees who are
performing successfully, as determined by the appointing power, shall
receive salary increases until the maximum of the salary range is
reached to recognize continuous successful performance. The employee'
s salary rate may not exceed the maximum of the salary range or fall
below the minimum of the salary range except where otherwise provided
by law or department rules.
(3) Effective June 1, 1998, notwithstanding paragraph (1), this
paragraph shall apply only to state employees in State Bargaining
Unit 16. Employees whose salary is not at the maximum of the salary
range shall be considered for a performance salary adjustment at
least annually. Only those employees who are performing successfully
as determined by the appointing power shall receive performance
salary adjustments until the maximum of the salary range is reached
to recognize continuous successful performance. The employee's
salary rate may not exceed the maximum of the salary range or fall
below the minimum of the salary range except where otherwise provided
by law or department rules.
(4) Effective January 1, 1999, notwithstanding paragraph (1), this
paragraph shall apply only to state employees in State Bargaining
Unit 8. Employees whose salary is not at the maximum of the salary
range shall be considered for a performance salary adjustment at
least annually. Only those employees who are performing successfully
as determined by the appointing power shall receive performance
salary adjustments until the maximum of the salary range is reached
to recognize continuous successful performance. The employee's
salary rate may not exceed the maximum of the salary range or fall
below the minimum of the salary range except where otherwise provided
by law or department rules.
(b) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5, the memorandum of understanding shall be controlling
without further legislative action, except that if the provisions of
a memorandum of understanding require the expenditure of funds, the
provisions shall not become effective unless approved by the
Legislature in the annual Budget Act.
SEC. 32. Section 19834 of the Government Code is amended to read:
19834. (a) Automatic salary adjustments shall be made for
employees in the state civil service in accordance with this chapter
and department rule adopted pursuant hereto, notwithstanding the
power now or hereafter conferred on any officer to fix or approve the
fixing of salaries, unless there is not sufficient money available
for the purpose in the appropriation from which the salary shall be
paid and the director shall so certify.
(b) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5, the memorandum of understanding shall be controlling
without further legislative action, except that if the provisions of
a memorandum of understanding require the expenditure of funds, the
provisions shall not become effective unless approved by the
Legislature in the annual Budget Act.
(c) Effective October 1, 1995, this section shall not apply to
state employees in State Bargaining Unit 5.
(d) Effective June 1, 1998, this section shall not apply to state
employees in State Bargaining Unit 16.
(e) Effective January 1, 1999, this section shall not apply to
state employees in State Bargaining Unit 8.
SEC. 33. Section 19835 of the Government Code is amended to read:
19835. (a) The right of an employee to automatic salary
adjustments is cumulative for a period not to exceed two years and he
or she shall not, in the event of an insufficiency of appropriation,
lose his or her right to these adjustments for the intermediate
steps to which he or she may be entitled for this period.
(b) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5, the memorandum of understanding shall be controlling
without further legislative action, except that if the provisions of
a memorandum of understanding require the expenditure of funds, the
provisions shall not become effective unless approved by the
Legislature in the annual Budget Act.
(c) Effective October 1, 1995, this section shall not apply to
state employees in State Bargaining Unit 5.
(d) Effective June 1, 1998, this section shall not apply to state
employees in State Bargaining Unit 16.
(e) Effective January 1, 1999, this section shall not apply to
state employees in State Bargaining Unit 8.
SEC. 34. Section 19836.1 of the Government Code is amended to
read:
19836.1. Effective June 1, 1998, notwithstanding Section 19836,
this section shall apply to state employees in State Bargaining Unit
16. Effective January 1, 1999, notwithstanding Section 19836, this
section shall apply to state employees in State Bargaining Unit 8.
(a) The appointing power or designee with the approval of the
department may authorize payment at any step above the minimum salary
limit to classes or positions in order to correct salary inequities.
(b) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5, the memorandum of understanding shall be controlling
without further legislative action, except that if such provisions of
a memorandum of understanding require the expenditure of funds, the
provisions shall not become effective unless approved by the
Legislature in the annual Budget Act.
SEC. 35. Section 19841 of the Government Code is amended to read:
19841. (a) Notwithstanding Section 11030, whenever a state
officer or employee is required by the appointing power because of a
change in assignment, promotion, or other reason related to his or
her duties to change his or her place of residence, the officer,
agent, or employee shall receive his or her actual and necessary
moving, traveling, lodging, and meal expenses incurred by him or her
both before and after and by reason of the change of residence. The
maximum allowances for these expenses shall be as follows: the costs
of packing, transporting, and unpacking 11,000 pounds of household
effects, traveling, lodging, and meal expenses for 60 days while
locating a permanent residence, storage of household effects for 60
days, and additional miscellaneous allowances not in excess of two
hundred dollars ($200). The maximum allowances may be exceeded where
the director determines that the change of residence will result in
unusual and unavoidable hardship for the officer or employee, and in
those cases the director shall determine the maximum allowances to be
received by the officer or employee.
(b) If a change of residence reasonably requires the sale of a
residence or the settlement of an unexpired lease, the officer or
employee may be reimbursed for any of the following expenses:
(1) The settlement of the unexpired lease to a maximum of one
year. Upon the date of surrender of the premises by the employee who
is the lessee, the rights and obligations of the parties to the
lease shall be as determined by Section 1951.2 of the Civil Code.
The state shall be absolved of responsibility for an unexpired
lease if the department determines the employee knew or reasonably
should have known that a transfer involving a physical move was
imminent before entering into the lease agreement.
(2) In the event of residence sale, reimbursement for brokerage
and other related selling fees or charges, as determined by
regulations of the department, customarily charged for like services
in the locality where the residence is located.
(c) This subdivision shall apply to state employees in State
Bargaining Unit 5, 6, 8, or 16. If the change of residence is caused
by a layoff, the application of this section shall be at the
discretion of the department based upon the recommendation of the
appointing power.
(d) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5, the memorandum of understanding shall be controlling
without further legislative action, except that if the provisions of
a memorandum of understanding require the expenditure of funds, the
provisions shall not become effective unless approved by the
Legislature in the annual Budget Act.
SEC. 36. Section 19994 of the Government Code is amended to read:
19994. (a) (1) When the state takes over and there is transferred
to it a function from any other public agency, the department may
determine the extent, if any, to which the employees employed by the
other public agency on the date of transfer are entitled to have
credited to them in the state civil service, seniority credits,
accumulated sick leave, and accumulated vacation because of service
with the former agency. Granting of seniority credit under this
section is subject to review by the State Personnel Board pursuant to
Section 19816.2.
(2) Notwithstanding paragraph (1), this paragraph shall apply to
state employees in State Bargaining Unit 5, 6, 8, or 16. When the
state takes over and there is transferred to it a function from any
other public agency, the department may determine the extent, if any,
to which the employees employed by the other public agency on the
date of transfer are entitled to have credited to them in the state
civil service, seniority credits, accumulated sick leave, and
accumulated vacation because of service with the former agency.
(b) The department shall limit that determination to the time any
transferred employees were employed in the specific function or a
function substantially similar while in the former agency and the
seniority credits and accumulated sick leave and accumulated vacation
shall not exceed that to which each employee would be entitled if he
or she had been continuously employed by the State of California.
This section is applicable to any function heretofore transferred to
the state, whether by state action or otherwise, as well as to any
future transfers of a function to the state, whether by state action
or otherwise.
SEC. 37. Section 19994.1 of the Government Code is amended to
read:
19994.1. (a) An appointing power may transfer any employee under
his or her jurisdiction: (1) to another position in the same class;
or (2) from one location to another whether in the same position, or
in a different position as specified above in (1) or in Section
19050.5.
(b) (1) When a transfer under this section or Section 19050.5
reasonably requires an employee to change his or her place of
residence, the appointing power shall give the employee, unless the
employee waives this right, a written notice of transfer 60 days in
advance of the effective date of the transfer. Unless the employee
waives this right, the appointing power shall provide to the employee
60 days prior to the effective date of the transfer a written notice
setting forth in clear and concise language the reasons why the
employee is being transferred.
(2) Notwithstanding paragraph (1), this paragraph shall apply to
state employees in State Bargaining Unit 5, 6, 8, or 16. When a
transfer under this section or Section 19050.5 reasonably requires an
employee to change his or her place of residence, the appointing
power shall give the employee, unless the employee waives this right,
a written notice of transfer 60 days in advance of the effective
date of the transfer unless the transfer is in lieu of layoff, in
which case the notice shall be 30 days in advance of the effective
date of the transfer. Unless the employee waives this right, the
written notice shall set forth in clear and concise language the
reasons why the employee is being transferred.
(c) If this section is in conflict with a memorandum of
understanding reached pursuant to Section 3517.5, the memorandum of
understanding shall be controlling without further legislative
action, except that if the memorandum of understanding requires the
expenditure of funds, it shall not become effective unless approved
by the Legislature in the annual Budget Act.
SEC. 38. Section 19994.2 of the Government Code is amended to
read:
19994.2. (a) (1) When there are two or more employees in a class
and an involuntary transfer is required to a position in the same
class, or an appropriate class as designated by the State Personnel
Board, in a location that reasonably requires an employee to change
his or her place of residence, the department may determine the
methods by which employees in the class or classes involved are to be
selected for transfer. These methods may include seniority and
other considerations.
(2) Notwithstanding paragraph (1), this paragraph shall apply to
state employees in State Bargaining Unit 5, 6, 8, or 16. When there
are two or more employees in a class and an involuntary transfer is
required to a position in the same class, or an appropriate class as
designated by the State Personnel Board, in a location that
reasonably requires an employee to change his or her place of
residence, the department may determine the methods by which
employees in the class or classes involved are to be selected for
transfer. These methods may include seniority and other
considerations, including special skills.
(b) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5, the memorandum of understanding shall be controlling
without further legislative action, except that if the provisions of
a memorandum of understanding require the expenditure of funds, the
provisions shall not become effective unless approved by the
Legislature in the annual Budget Act.
SEC. 39. Section 19997 of the Government Code is amended to read:
19997. (a) Whenever it is necessary because of lack of work or
funds, or whenever it is advisable in the interests of economy, to
reduce the staff of any state agency, the appointing power may lay
off employees pursuant to this article and department rule. All
layoff provisions and procedures established or agreed to under this
article shall be subject to State Personnel Board review pursuant to
Section 19816.2.
(b) Notwithstanding subdivision (a), this subdivision shall apply
to state employees in State Bargaining Unit 5, 6, 8, or 16. Whenever
it is necessary because of lack of work or funds, or whenever it is
advisable in the interests of economy, to reduce the staff of any
state agency, the appointing power may lay off employees pursuant to
this article and department rule.
SEC. 40. Section 19997.3 of the Government Code is amended to
read:
19997.3. (a) (1) Layoff shall be made in accordance with the
relative seniority of the employees in the class of layoff. In
determining seniority scores, one point shall be allowed for each
complete month of full-time state service regardless of when the
service occurred. Department rules shall establish all of the
following:
(A) The extent to which seniority credits may be granted for less
than full-time service.
(B) The seniority credit to be granted for service in a class that
has been abolished, combined, divided, or otherwise altered under
the authority of Section 18802.
(C) The basis for determining the sequence of layoff whenever the
class and subdivision of layoff includes employees whose service is
less than full time.
(D) Any other matters as are necessary or advisable to the
operation of this chapter.
(2) Notwithstanding paragraph (1), this paragraph shall apply to
state employees in State Bargaining Unit 5, 6, 8, or 16. Layoff
shall be made in accordance with the relative seniority of the
employees in the class of layoff. In determining seniority scores,
one point shall be allowed for each complete month of full-time state
service regardless of when the service occurred. Department rules
shall establish all of the following:
(A) The extent to which seniority credits may be granted for less
than full-time service.
(B) The basis for determining the sequence of layoff whenever the
class and subdivision of layoff includes employees whose service is
less than full time.
(C) Any other matters as are necessary or advisable to the
operation of this chapter.
(3) For state employees in State Bargaining Unit 8 or 16, less
than full-time service shall be prorated.
(b) For professional, scientific, administrative, management, and
executive classes, the department shall prescribe standards and
methods by rule whereby employee efficiency shall be combined with
seniority in determining the order of layoffs and the order of names
on reemployment lists. These standards and methods may vary for
different classes, and shall take into consideration the needs of
state service and practice in private industry and other public
employment.
(c) For state employees in State Bargaining Unit 8 or 16, prior to
laying off, transferring, or demoting permanent or probationary
employees, employment for other employees who did not formerly have
permanent status shall be terminated in the following sequence:
student assistants, retired annuitants, temporary intermittent,
limited term, and permanent intermittent appointments. No
distinction shall be made between a probationary and permanent
employee or between full-time and part-time employees when making
layoffs. For layoff purposes employees on leaves of absences shall
be treated the same as other employees.
(d) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5, the memorandum of understanding shall
be controlling without further
legislative action, except that if the provisions of a memorandum of
understanding incurs either present or future costs, or requires the
expenditure of funds, the provisions shall not become effective
unless approved by the Legislature in the annual Budget Act.
SEC. 41. Section 19997.4 of the Government Code is amended to
read:
19997.4. (a) For the purposes of determining seniority pursuant
to paragraph (1) of subdivision (a) of Section 19997.3, the term
"state service" shall include all service that is exempt from state
civil service.
(b) Notwithstanding subdivision (a), this subdivision shall apply
only to state employees in State Bargaining Unit 5. For the purposes
of determining seniority pursuant to paragraph (2) of subdivision
(a) of Section 19997.3, the term "state service" shall include
service that is exempted from state civil service by subdivisions
(e), (f), (g), (i), and (m) of Section 4 of Article VII of the
California Constitution.
(c) Notwithstanding subdivision (a), this subdivision shall apply
to state employees in State Bargaining Unit 6, 8, or 16. For the
purposes of determining seniority pursuant to paragraph (2) of
subdivision (a) of Section 19997.3, the term "state service" shall
include service that is exempted from the state civil service by any
of the following:
(1) Subdivision (e), (f), (g), (i), or (m) of Section 4 of Article
VII of the California Constitution.
(2) Subdivision (a) of Section 4 of Article VII of the California
Constitution if an employee provides to the appointing power a copy
of his or her official employment history record by July 1, 1999, or
within six months of appointment to the state civil service.
SEC. 42. Section 19997.5 of the Government Code is amended to
read:
19997.5. (a) Separations that are necessary by reason of
reinstatement of an employee or employees after recognized military
service as provided for in Section 19780 shall be made by layoff. In
making these separations, the regular method of determining the
order of layoff shall be used unless this would result in the layoff
of an employee who has been reinstated in the class and subdivision
of layoff under Section 19780, and in the retention of an employee
who was appointed in the class and subdivision of layoff during the
time that a reinstated employee was on military leave. Under these
circumstances, seniority shall not be counted as provided in Section
19997.3. Instead, service in the subdivision of layoff that
qualifies under Section 19997.3 for credit is the only state service
that shall be counted.
Whenever such a layoff results in the demotion to a lower class of
an employee who has been reinstated after recognized military
service as provided in Section 19780, the resulting layoff, if any,
in the lower class shall be made as though that reinstated employee
had been in that lower class at the time he or she went on military
leave.
Any layoff occurring within one year after reinstatement of an
employee after recognized military service shall be presumed to have
been necessary by reason of reinstatement of an employee or employees
under Section 19780 unless the department determines that the reason
for layoff is clearly not related to the reinstatement.
(b) Notwithstanding subdivision (a), this subdivision shall apply
to state employees in State Bargaining Unit 5, 6, 8, or 16.
Separations that are necessary by reason of reinstatement of an
employee or employees after recognized military service as provided
for in Section 19780 shall be made by layoff. In making these
separations, the regular method of determining the order of layoff
shall be used.
SEC. 43. Section 19997.6 of the Government Code is amended to
read:
19997.6. (a) A veteran, except a veteran who was reinstated from
military leave, shall in the event of layoff receive seniority credit
for recognized military service if the veteran entered the state
service after discharge, the end of the national emergency, or the
end of the state military emergency.
(b) Seniority credit for recognized military service shall be
computed as if it were service in the class to which the employee was
first given permanent civil service or exempt appointment after his
or her entry into the state service following recognized military
service.
(c) Seniority credit for recognized military service shall not
exceed one year's credit if the veteran had no state service prior to
entering the military service.
(d) This section shall become operative on July 1, 1993.
(e) Notwithstanding subdivisions (a), (c), and (d), this
subdivision shall apply to state employees in State Bargaining Unit
5, 6, 8, or 16. A veteran, except a veteran who was reinstated from
military leave, shall in the event of layoff receive a maximum of one
year's seniority credit for recognized military service if the
veteran entered the state service after discharge, the end of the
national emergency, or the end of the state military emergency. For
purposes of this subdivision, "recognized military service" means
service in a military campaign or expedition for which a medal was
authorized by the government of the United States in accordance with
Section 300.1 of Title 12 of the California Code of Regulations.
SEC. 44. Section 19997.7 of the Government Code is amended to
read:
19997.7. (a) Employees in the class under consideration, up to
the number of positions to be abolished or discontinued, shall be
laid off in the order as determined under this part. As between two
or more of these employees who have the same score, veterans shall
have preference in retention. Other ties shall be resolved according
to department rule that shall take into consideration other matters
of record before names are drawn by lot.
(b) Notwithstanding subdivision (a), this subdivision shall apply
to state employees in State Bargaining Unit 5, 6, 8, or 16.
Employees in the class under consideration, up to the number of
positions to be abolished or discontinued, shall be laid off in the
order as determined under this part. As between two or more
employees who have the same score, veterans shall have preference in
retention. Other ties shall be determined by lot.
SEC. 45. Section 19997.8 of the Government Code is amended to
read:
19997.8. (a) (1) In lieu of being laid off an employee may elect
demotion to: (A) any class with substantially the same or a lower
maximum salary in which he or she had served under permanent or
probationary status, or (B) a class in the same line of work as the
class of layoff, but of lesser responsibility, if such a class is
designated by the department. Whenever a demotion requires a layoff
in the elected class, the seniority score for the demoted employee
shall be recomputed in that class. The appointing power shall inform
the employee in the notice of layoff of the classes to which he or
she has the right to demote. To be considered for demotion in lieu
of layoff an employee must notify his or her appointing power in
writing of his or her election not later than five calendar days
after receiving notice of layoff.
(2) Notwithstanding paragraph (1), this paragraph shall apply to
state employees in State Bargaining Unit 5, 6, 8, or 16. In lieu of
being laid off an employee may elect demotion to: (A) any class with
substantially the same or a lower maximum salary in which he or she
had served under permanent or probationary status, or (B) a class in
the same class series as the class of layoff, but of lesser
responsibility, or (C) a class in a related line of work as the class
of layoff, but of lesser responsibility, if such a class is
designated by the department. Whenever a demotion requires a layoff
in the elected class, the seniority score for the demoted employee
shall be recomputed in that class if necessary. The appointing power
shall inform the employee in the notice of layoff of the classes to
which he or she has the right to demote. To be considered for
demotion in lieu of layoff an employee must notify his or her
appointing power in writing of his or her election not later than
five calendar days after receiving notice of layoff.
(b) Demotions in lieu of layoff, and layoffs resulting therefrom,
shall be governed by this article and shall be made within the
subdivisions approved by the department for this purpose. These
subdivisions need not be the same as those used to determine the area
of layoff under Section 19997.2.
(c) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5, the memorandum of understanding shall be controlling
without further legislative action, except that if the provisions of
a memorandum of understanding require the expenditure of funds, the
provisions shall not become effective unless approved by the
Legislature in the annual Budget Act.
SEC. 46. Section 19997.11 of the Government Code is amended to
read:
19997.11. (a) (1) The names of employees to be laid off or
demoted shall be placed upon the reemployment list for the
subdivision, if such a subdivision was designated, upon the
departmental reemployment list and upon the general reemployment
list, for the class from which the employees were laid off or
demoted. The department may also place these names upon the general
reemployment list for any other appropriate classes as the department
determines.
(2) Notwithstanding paragraph (1), this paragraph shall apply only
to state employees in State Bargaining Unit 5. The names of
employees to be laid off, demoted in lieu of layoff, or transferred
in lieu of layoff shall be placed upon the reemployment list for the
subdivision, if such a subdivision was designated, upon the
departmental reemployment list and upon the general reemployment
list, for the class from which the employees were laid off, demoted
in lieu of layoff, or transferred in lieu of layoff. The department
may also place these names upon the general reemployment list for any
other appropriate classes as the department determines.
(3) Notwithstanding paragraph (1), this paragraph shall apply to
state employees in State Bargaining Unit 6, 8, or 16. The names of
employees to be laid off, demoted in lieu of layoff, or transferred
in lieu of layoff shall be placed upon the reemployment list for the
subdivision, if such a subdivision was designated and upon the
departmental reemployment list, for the class from which the
employees were laid off, demoted in lieu of layoff, or transferred in
lieu of layoff. The department shall also place these names upon
the general reemployment list only for the entry level class within
the employee's primary demotional pattern. This general reemployment
list shall be a rule of one name.
(b) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5, the memorandum of understanding shall be controlling
without further legislative action, except that if the provisions of
a memorandum of understanding require the expenditure of funds, the
provisions shall not become effective unless approved by the
Legislature in the annual Budget Act.
SEC. 47. Section 19997.13 of the Government Code is amended to
read:
19997.13. (a) (1) An employee compensated on a monthly basis
shall be notified that he or she is to be laid off 30 days prior to
the effective date of layoff and not more than 60 days after the date
of the seniority computation. The notice of layoff shall be in
writing and shall contain the reason or reasons for the layoff. An
employee to be laid off may elect to accept this layoff prior to the
effective date thereof.
(2) Notwithstanding paragraph (1), this paragraph shall apply to
state employees in State Bargaining Unit 5, 6, 8, or 16. An employee
compensated on a monthly basis shall be notified that he or she is
to be laid off 30 days prior to the effective date of layoff. The
notice of layoff shall be in writing and shall contain the reason or
reasons for the layoff. An employee to be laid off may elect to
accept this layoff prior to the effective date thereof.
(b) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5, the memorandum of understanding shall be controlling
without further legislative action, except that if the provisions of
a memorandum of understanding require the expenditure of funds, the
provisions shall not become effective unless approved by the
Legislature in the annual Budget Act.
SEC. 48. Section 21363.6 is added to the Government Code, to read:
21363.6. Notwithstanding Section 21363, the limitation on the
service retirement benefit shall be 85 percent for state peace
officer/firefighter members in State Bargaining Unit 8 who retire on
and after January 1, 1999. This provision may also be applied to
state peace officer/firefighter members in related supervisory or
confidential positions, provided that the Department of Personnel
Administration has approved this inclusion in writing to the board.
SEC. 49. Section 21465.5 is added to the Government Code, to read:
21465.5. Section 21465 shall also apply to state peace
officer/firefighter members in State Bargaining Unit 8 who retire on
and after January 1, 1999, provided that a memorandum of
understanding has been agreed upon by the state and the recognized
employee organization to become subject to that section. That
section shall also apply to state peace officer/firefighter members
in related supervisory and confidential positions, provided that the
Department of Personnel Administration has approved their inclusion.
SEC. 50. Section 22754 of the Government Code is amended to read:
22754. As used in this part the following definitions, unless the
context otherwise requires, shall govern the interpretation of
terms:
(a) "Board" means the Board of Administration of the Public
Employees' Retirement System.
(b) "Employee" means:
(1) Any officer or employee of the State of California or of any
agency, department, authority, or instrumentality of the state
including the University of California, or any officer or employee
who is a local or school member of the Public Employees' Retirement
System employed by a contracting agency that has elected to be or
otherwise has become subject to this part, or who is a member or
retirant of the State Teachers' Retirement System employed by an
employer who has elected to become subject to this part, or who is an
employee or annuitant of a special district or county subject to the
County Employees Retirement Law of 1937 (Chapter 3 (commencing with
Section 31450) of Part 3 of Division 4 of Title 3) that has elected
to become subject to this part, or who is an employee or annuitant of
a special district, as defined in subdivision (i), that has elected
to become subject to this part, except persons employed on an
intermittent, irregular or less than half-time basis, or employees
similarly situated, or employees in respect to whom contributions by
the state for any type of plan or program offering prepaid hospital
and medical care are otherwise authorized by law.
(2) Any officer or employee who participates in the retirement
system of a contracting agency as defined in paragraph (2) of
subdivision (g) that has elected to become subject to this part,
except persons employed less than half time or who are otherwise
determined to be ineligible.
(3) Any annuitant of the Public Employees' Retirement System
employed by a contracting agency as defined in subdivision (g) that
has elected to become subject to this part who is a person retired
under Section 21228.
(4) Notwithstanding paragraph (1), "eligible employee" of the
State of California, as it applies to state employees in State
Bargaining Unit 8 or 16, means (A) a permanent employee appointed
half time or more; (B) an employee who is a limited term or temporary
authorization appointee who continues coverage based on prior
continuous permanent status; (C) an employee who is in a half time or
more limited-term appointment shall qualify after working six
consecutive months; and (D) an employee appointed half time or more
to a temporary appointment in lieu of a permanent appointment; and
(E) a permanent intermittent employee who works a minimum of 480
hours in a six-month control period. All other limited-term,
nonstatus employees as defined by the Department of Personnel
Administration and temporary authorization employees are not
eligible.
(c) "Carrier" means a private insurance company holding a valid
outstanding certificate of authority from the Insurance Commissioner
of the state, a medical society or other medical group, a nonprofit
hospital service plan qualifying under Chapter 11A (commencing with
Section 11491) of Part 2 of Division 2 of the Insurance Code, or
nonprofit membership corporation lawfully operating under Section
9200 or Section 9201 of the Corporations Code, or a health care
service plan as defined under subdivision (f) of Section 1345 of the
Health and Safety Code, or a health maintenance organization approved
under Title XIII of the federal Public Health Services Act, which is
lawfully engaged in providing, arranging, paying for, or reimbursing
the cost of personal health services under insurance policies or
contracts, medical and hospital service agreements, membership
contracts, or the like, in consideration of premiums or other
periodic charges payable to it.
(d) "Health benefits plan" means any program or entity that
provides, arranges, pays for, or reimburses the cost of health
benefits.
(e) "Annuitant" means:
(1) Any person who has retired within 120 days of separation from
employment and who receives any retirement allowance under any state
or University of California retirement system to which the state was
a contributing party.
(2) A family member receiving an allowance as the survivor of an
annuitant who has retired as provided in paragraph (1), or as the
survivor of a deceased employee under Section 21541, 21546, or 21571
or similar provisions of any other state retirement system.
(3) Any employee who has retired under the retirement system
provided by a contracting agency as defined in paragraph (2) of
subdivision (g) and who receives a retirement allowance from that
retirement system, or a surviving family member who receives the
retirement allowance in place of the deceased.
(4) Any person who was a state member for 30 years or more and
who, at the time of retirement, was a local member employed by a
contracting agency.
(f) (1) "Family member" means an employee's or annuitant's spouse
and any unmarried child (including an adopted child, a stepchild, or
recognized natural child who lives with the employee or annuitant in
a regular parent-child relationship). The board shall, by
regulation, prescribe age limits and other conditions and limitations
pertaining to unmarried children.
(2) Notwithstanding paragraph (1), this paragraph shall apply only
to state employees, as defined in Section 19815, that are in State
Bargaining Unit 5. "Family member" only means an employee's legal
spouse and any unmarried child, adopted child, stepchild, recognized
natural child, or legal ward living with the employee in a regular
parent-child relationship.
(g) "Contracting agency" means:
(1) Any contracting agency as defined in Section 20022, any county
or special district subject to the County Employees Retirement Law
of 1937 (Chapter 3 (commencing with Section 31450) of Part 3 of
Division 4 of Title 3), and any special district, school district,
county board of education, personnel commission of a school district
or a county superintendent of schools.
(2) Any public body or agency of, or within California not covered
by the Public Employees' Retirement System or subject to the County
Employees Retirement Law of 1937 (Chapter 3 (commencing with Section
31450) of Part 3 of Division 4 of Title 3), which provides a
retirement system for its employees funded wholly or in part by
public funds.
(h) "Employer" means the state, any contracting agency employing
an employee, and any agency which has elected to become subject to
this part pursuant to Section 22856.
(i) "Special district" means a nonprofit, self-governed public
agency, within the State of California and comprised solely of public
employees, performing a governmental rather than proprietary
function.
SEC. 51. Section 22754.5 of the Government Code is amended to
read:
22754.5. (a) Notwithstanding Section 22754, for state employees
in State Bargaining Unit 8 or 16 and members of State Bargaining Unit
8 or 16 who retire on or after the effective date of this section
and who meet the definition of annuitant, "eligible family member"
means:
(1) The legal spouse in a marriage recognized by the state.
(2) A child under the age of 19 years who has never been married
or who has obtained a legal annulment. This includes:
(A) The natural or adopted child, or stepchild of the employee or
annuitant.
(B) A child, who is not the natural or adopted child, or stepchild
of the employee or annuitant and who is not receiving or eligible
for coverage through another source and who meets either of the
following conditions:
(i) The employee or annuitant has legal or joint custody of the
child.
(ii) The child is a grandchild living in the household of the
employee or annuitant, and the natural parent or parents are not
living in the same household.
(3) A child over the age of 19 years but under the age of 23 years
who has never been married or who has obtained a legal annulment and
meets the criteria of subparagraph (A) or (B) of paragraph (2) may
continue to be enrolled if the child is one of the following:
(A) Enrolled on an ongoing basis as a college student for at least
nine semester college units or equivalent quarter units.
(B) Enrolled on an ongoing basis in an adult continuation school
curriculum that would result in high school diploma or its
equivalent. An employee or annuitant whose child continues to be
enrolled under this paragraph must provide the employer or benefit
carrier with an annual certification of schooling or enrollment upon
request.
(4) A child under the age of 19 years who has never been married
or who has obtained a legal annulment may continue to be enrolled
after attaining the age of 19 years if he or she is incapable of
self-support because of physical disability or mental incapacity and
he or she is dependent on the employee or annuitant for support and
care. A disabled child may continue to be enrolled after attaining
the age of 19 years only if he or she was enrolled as disabled at the
time of the employee's initial enrollment or became disabled while
enrolled as an eligible family member prior to attaining the age of
19 years. The employee or annuitant must provide satisfactory
evidence of the disability within 60 days after the disabled child
attains the age of 19 years. Necessary documentation as prescribed
by the employer must be completed, processed, and approved by the
Public Employees' Retirement System. An annual certification of
continued disability may be required.
(b) At the time of enrollment or audit, an employee or annuitant
will be required to provide proof of eligibility for all enrolled
family members that may include any of the following: (1) a valid
marriage certificate, (2) a birth certificate, (3) a certification of
disability, (4) legal custody documents, and (5) a copy of the
employee's or annuitant's signed state income tax return.
SEC. 52. Section 22754.7 is added to the Government Code, to read:
22754.7. Notwithstanding any other provision of this part, the
following provisions are also applicable to state employees in State
Bargaining Unit 8:
(a) Paragraph (4) of subdivision (b) of Section 22754.
(b) Subdivision (a) of Section 22754.5.
SEC. 53. Section 22955 of the Government Code is amended to read:
22955. (a) Notwithstanding Sections 22953 and 22954, an employee
in State Bargaining Unit 6, 8, or 16 who becomes a state member of
the Public Employees' Retirement System after January 1, 1998, and
who is included in the definition of state employee in subdivision
(c) of Section 3513 shall not receive any portion of the employer's
contribution payable for annuitants, pursuant to Sections 22953 and
22954, unless the employee is credited with 10 years or more of state
service, as defined by this section, at the time of retirement.
This subdivision shall have retroactive application to state
employees in State Bargaining Unit 16 who become a state member of
the Public Employees' Retirement System after January 1, 1998, but
prior to the effective date of the amendments to this section by the
Legislature at the 1997-98 Regular Session.
(b) The percentage of employer's contribution amount payable for
postretirement dental care benefits for an employee subject to this
section shall be based on the funding provision of the plan and the
member's completed years of state service at retirement as shown in
the following table:
Percentage of Employer
Credited Years of Service Contribution
10 ........................ 50
11 ........................ 55
12 ........................ 60
13 ........................ 65
14 ........................ 70
15 ........................ 75
16 ........................ 80
17 ........................ 85
18 ........................ 90
19 ........................ 95
20 ........................ 100
(c) This section shall only apply to state employees who retire
for service.
(d) Benefits provided to an employee subject to this section shall
be applicable to all future state service.
(e) For purposes of this section, "state service" means service
rendered as an employee or an appointed or elected officer of the
state for compensation. In those cases where the state assumes or
has assumed from a public agency a function and the related
personnel, service rendered by that personnel for compensation as
employees or appointed or elected officers of that local public
agency shall not be credited, at retirement, as state service for the
purposes of this section, unless the former employer has paid or
agreed to pay the state
agency the amount actuarially determined to equal the cost for any
employee dental benefits that were vested at the time that the
function and the related personnel were assumed by the state. For
noncontracting local public agencies the state department shall
certify the completed years of local agency service to be credited to
the employee to the Public Employees' Retirement System at the time
of separation for retirement.
(f) Whenever the state contracts to assume a local public agency
function, completed years of service rendered by the personnel for
compensation as employees or appointed or elected officers of the
local public agency shall be credited as state service only upon a
finding by the Department of Finance that the contract contains a
benefit factor sufficient to reimburse the state for the amount
necessary to compensate the state fully for postretirement dental
benefit costs for those personnel.
(g) This section shall not apply to employees of the California
State University or the Legislature.
SEC. 54. Section 22955.5 is added to the Government Code, to read:
22955.5. Notwithstanding any other provision of this part, the
provision of subdivision (a) of Section 22955 shall also apply to
state employees in State Bargaining Unit 8.
SEC. 55. Section 22960.100 is added to the Government Code, to
read:
22960.100. (a) Notwithstanding any other provision of law, the
plan established by this part shall also apply to state peace officer
and firefighter members in State Bargaining Unit 8 who have become
subject to this part by a memorandum of understanding, as provided in
Section 3517.5.
(b) The plan may also be provided to state peace officers or
firefighters who are either excluded from the definition of state
employee in subdivision (c) of Section 3513, or are nonelected
officers or employees of the executive branch of government and are
not members of the civil service, and who supervise employees in a
bargaining unit that is subject to this part, provided that the
Department of Personnel Administration has approved their inclusion
for coverage under this part.
SEC. 56. Section 10295 of the Public Contract Code is amended to
read:
10295. All contracts entered into by any state agency for (a) the
hiring or purchase of equipment, supplies, materials, or elementary
school textbooks, (b) services, whether or not the services involve
the furnishing or use of equipment, materials or supplies or are
performed by an independent contractor, (c) the construction,
alteration, improvement, repair or maintenance of property, real or
personal, or (d) the performance of work or services by the state
agency for or in cooperation with any person, or public body, are
void unless and until approved by the department. Every such
contract shall be transmitted with all papers, estimates, and
recommendations concerning it to the department and, if approved by
the department, shall be effective from the date of the approval.
This section applies to any state agency that by general or specific
statute is expressly or impliedly authorized to enter into
transactions referred to in this section. This section does not
apply to any transaction entered into by the Trustees of the
California State University or by a department under the State
Contract Act or the California State University Contract Law, any
contract of a type specifically mentioned and authorized to be
entered into by the Department of Transportation under Section 14035
or 14035.5 of the Government Code, Sections 99316 to 99319,
inclusive, of the Public Utilities Code, or the Streets and Highways
Code, any contract entered into by the Department of Transportation
that is not funded by money derived by state tax sources but, rather,
is funded by money derived from federal or local tax sources, any
contract entered into by the Department of Personnel Administration
for state employees in State Bargaining Unit 8 or 16 for employee
benefits, occupational health and safety, training services, or
combination thereof any contract let by the Legislature, or any
contract entered into under the authority of Chapter 4 (commencing
with Section 11770) of Part 3 of Division 2 of the Insurance Code.
SEC. 57. Section 10344.1 of the Public Contract Code is amended to
read:
10344.1. The Department of Personnel Administration, with respect
to contracts entered into by the department for state employees in
State Bargaining Unit 8 or 16 for employee benefits, occupational
health and safety, training services, or any combination thereof,
shall provide all qualified bidders with a fair opportunity to enter
the bidding process, therefore stimulating competition in a manner
conducive to sound fiscal practices. The Department of Personnel
Administration shall make available to any member of the public its
guidelines for awarding these contracts, and to the extent feasible,
implement the objectives set forth in Section 10351.
SEC. 58. The Department of Finance may adjust funding and
reimbursement levels in the Department of Forestry and Fire
Protection budget as necessary to meet the provisions of the
memorandum of understanding approved by Section 2.
SEC. 59. The Department of Forestry and Fire Protection may
increase its spending authority for reimbursement levels in an amount
necessary to implement the memorandum of understanding approved by
Section 2.
SEC. 60. This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting the necessity are:
In order that the provisions of this act relating to state
employees may become effective at the earliest possible time, it is
necessary that this act go into immediate effect.