BILL NUMBER: SB 1073 CHAPTERED 09/02/99 CHAPTER 310 FILED WITH SECRETARY OF STATE SEPTEMBER 2, 1999 APPROVED BY GOVERNOR SEPTEMBER 1, 1999 PASSED THE ASSEMBLY AUGUST 19, 1999 PASSED THE SENATE APRIL 29, 1999 INTRODUCED BY Committee on Public Employment and Retirement (Senators Ortiz (Chair), Baca, Karnette, and Lewis) FEBRUARY 26, 1999 An act to amend Sections 18672, 18680, 18710, 18939, 19063, 19063.1, 19063.2, 19063.5, 19063.8, 19144, 19253.5, 19401, 19402, 19403, 19405, 19406, and 19585 of, to add Section 21419.5 to, and to repeal Section 19404 of, the Government Code, relating to state employees. LEGISLATIVE COUNSEL'S DIGEST SB 1073, Committee on Public Employment and Retirement. State employees. (1) The State Civil Service Act requires that a subpoena for attendance at a hearing under the act or a subpoena duces tecum for production of documents be issued by the state agency or presiding officer at the request of a party. This bill instead would require the State Personnel Board or its authorized representative to issue the subpoena or subpoena duces tecum. (2) Under the act, all orders and decisions of the board are binding on appointing powers. This bill would specify that board orders and decisions are also binding on all parties to a proceeding before it. The bill would also revise the procedure available to the board for responding to noncompliance with a board order. (3) Under the act, any person receiving state public assistance under the Aid to Families with Dependent Children program is required to receive priority for a seasonal class position that does not require an examination. This bill instead would refer to persons receiving assistance under the CalWORKs program and would include entry level nontesting class positions in its provisions for priority consideration. (4) Under the Public Employees' Retirement Law, the head of an agency may make an application for disability retirement for an employee, but may not separate that employee from state service unless the Board of Administration of the Public Employees' Retirement System determines that the employee should be retired. This bill would require an appointing power, if it concludes from a medical examination that an employee is unable to perform the work of his or her present position or any other positions in the agency and the employee is eligible and does not waive the right to retire for disability, to file an application for disability retirement on the employee's behalf. Upon filing the application, the appointing power would be authorized to remove the employee from the job and place the employee on involuntary leave status while the application is pending. (5) The act requires state agencies to establish an upward mobility program. This bill would revise these requirements, including classes of eligible employees and available programs. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 18672 of the Government Code is amended to read: 18672. (a) Subpoenas and subpoenas duces tecum may be issued for attendance at a hearing and for production of documents at any reasonable time and place. However, a subpoena shall not be issued to compel attendance of any witness who does not reside within 100 miles of the place where the hearing or investigation is held unless it is shown to the satisfaction of a member of the board, the executive officer, or the person authorized to conduct the investigation or hearing, by affidavit stating the facts, that the witness is a material witness. Such a statewide subpoena shall be served at least five days prior to the date of hearing. (b) Subpoenas and subpoenas duces tecum shall be issued by the board or its authorized representative at the request of a party. (c) The process extends to all parts of the state and shall be served in accordance with Sections 1987 and 1988 of the Code of Civil Procedure. A subpoena or subpoena duces tecum may also be delivered by certified mail return receipt requested or by messenger. Service by messenger shall be effected when the witness acknowledges receipt of the subpoena to the sender, by telephone, by mail, or in person, and identifies himself or herself either by reference to date of birth and driver's license number or Department of Motor Vehicles identification number, or the sender may verify receipt of the subpoena by obtaining other identifying information from the recipient. The sender shall make a written notation of the acknowledgment. A subpoena issued and acknowledged pursuant to this section has the same force and effect as a subpoena personally served. Failure to comply with a subpoena issued and acknowledged pursuant to this section may be punished as a contempt and the subpoena may so state. A party requesting a continuance based upon the failure of a witness to appear at the time and place required for the appearance or testimony pursuant to a subpoena, shall prove that the party has complied with this section. The continuance shall only be granted for a period of time that would allow personal service of the subpoena and in no event longer than that allowed by law. (d) No witness is obliged to attend unless the witness is a resident of the state at the time of service. (e) The custodian of documents that are the subject of a subpoena duces tecum may satisfy the subpoena by delivery of the documents or a copy of the documents, or by making the documents available for inspection or copying, together with an affidavit in compliance with Section 1561 of the Evidence Code. SEC. 2. Section 18680 of the Government Code is amended to read: 18680. The remedy provided in Sections 11186 to 11188 inclusive is cumulative, and does not impair or interfere with either the power of the board or its authorized representative to conduct the hearing or investigation to enforce the attendance of witnesses and the production of books or papers or the power of any party to seek court enforcement of a subpoena issued by the board or its authorized representative. SEC. 3. Section 18710 of the Government Code is amended to read: 18710. All orders and decisions of the board made pursuant to Article VII of the California Constitution or this part shall be obeyed by and are binding upon all parties to a proceeding before it, including, but not limited to, appointing powers and all their employees, including their personnel officers, regardless of whether an appointing power or other party agrees or disagrees with a decision or order of the board. All orders and decisions, other than orders or decisions of the board itself, shall be reviewed by the executive officer or an employee of the board designated by the executive officer. If any appointing power or other party refuses or neglects to comply with any such order or decision, the board may , in its sole discretion, after investigation with or without a hearing, do any of the following: (a) Issue further findings interpreting or clarifying the order or decision. (b) Issue further findings as to whether an appointing power or other party has or has not complied with the order or decision. (c) Issue an order to show cause, directed to the appointing power, why the board should not file a petition for a writ of mandate to compel the appointing power to comply with the order or decision. If the board finds that no good cause exists for the refusal or neglect of the appointing power or other party to comply with the order or decision, the board may issue a further order or decision consistent with its findings. Alternatively, the board may file a petition for a writ of mandate in the manner and in the court provided for by law to compel the appointing power or other party to comply with the order or decision. This procedure for the enforcement of the orders and decisions of the board is in addition to any other means or procedure which may be provided by law. Nothing in this section shall preclude a party to a proceeding before the board from seeking judicial enforcement of an order or decision of the board. SEC. 4. Section 18939 of the Government Code is amended to read: 18939. For classes of positions for which the board or a designated appointing power finds it difficult to maintain adequate eligible lists it may receive applications, conduct examinations, and create eligible lists continuously. The names of eligibles who took the same or a comparable examination on different dates may be ranked for purposes of certification in the order of final earned ratings, except as the order may be modified by the application of veterans preferences or career credits, consistent with applicable statutes. Eligibility from a continuous examination may be deemed to be established as of the date of examination. SEC. 5. Section 19063 of the Government Code is amended to read: 19063. (a) Any person receiving state public assistance under the CalWORKs program (Article 3.2 (commencing with Section 11320) of Chapter 2 of Part 3 of Division 9 of the Welfare and Institutions Code) who meets the minimum qualifications for any civil service position described by the State Personnel Board as a seasonal or an entry level nontesting class that does not require an examination shall be given priority consideration. "Priority consideration" means, for the purposes of this article, that after consideration has been made for all conditions described in this section, the state agency involved shall hire all qualified job applicants who are receiving state public assistance before hiring any other applicant. The board shall review all nontesting classes and determine those that are subject to this article. (b) Public assistance recipients who apply for openings under this article shall be required to undergo the same employment process used by state agencies to select any other person for appointment to a position in such a class. If a state agency does not select a public assistance recipient to fill an opening, it shall document in its employment records the reasons why the public assistance recipient was not selected and any other information determined to be necessary by the board. (c) The employment of public assistance recipients shall be consistent with the goals established by each agency under Section 19790. (d) This section shall not preclude a state agency from hiring any person appointed during the prior 12 months in the class for which the vacancy exists. SEC. 6. Section 19063.1 of the Government Code is amended to read: 19063.1. Each state agency that intends to establish qualified hiring pools, as defined by the State Personnel Board, for seasonal or entry level nontesting class employment shall notify the Employment Development Department or its delegate in the area where the openings are expected to occur at least 45 calender days prior to the establishment of the pool. The state agency shall request referrals of public assistance recipients and at the same time shall provide necessary job-related information. SEC. 7. Section 19063.2 of the Government Code is amended to read: 19063.2. Each state agency that has an open seasonal or entry level nontesting class position, but does not have a qualified hiring pool, shall notify the Employment Development Department or its delegate in the area where the job is located of the opening no later than five working days after the vacancy occurs. The state agency shall request referrals of public assistance recipients and at the same time shall provide necessary job-related information. The agency shall provide a reasonable period for referrals, but not less than 10 working days. SEC. 8. Section 19063.5 of the Government Code is amended to read: 19063.5. Notwithstanding any other provision of law, participation in a seasonal or entry level nontesting class vacancy by a public assistance recipient shall be voluntary only, and in no event shall any person be subject to sanctions, through loss of benefits or eligibility, for not applying for, accepting, or continuing in such a position. All notices shall explain the voluntary nature of the application to work in a seasonal or entry level nontesting class opening, the job requirements, the amount of pay, and the job qualifications. All notices, shall also inform public assistance recipients that they will have priority in being hired for jobs in these openings as provided in Section 19063. SEC. 9. Section 19063.8 of the Government Code is amended to read: 19063.8. Any seasonal or entry level nontesting classifications specifically designed to support a program to train students, as determined by the board, to the extent that they are authorized as of the effective date of this article, shall be exempt from this article. However, state agencies shall be encouraged by the board to increase their efforts to recruit disadvantaged youth or students for these jobs. SEC. 10. Section 19144 of the Government Code is amended to read: 19144. Subject to Sections 21223 and 21224, a person who has retired from state civil service may be employed temporarily in a civil service position at any time following retirement, provided that the position is either: (a) In the class in which the person had permanent or probationary status or a career executive assignment appointment at the time of retirement. (b) In another class to which the person could have been permanently transferred, reinstated, or demoted at the time of retirement. SEC. 11. Section 19253.5 of the Government Code is amended to read: 19253.5. (a) In accordance with board rule, the appointing power may require an employee to submit to a medical examination by a physician or physicians designated by the appointing power to evaluate the capacity of the employee to perform the work of his or her position. (b) Fees for the examination and for the services of medical specialists or technicians, if necessary, shall be paid by the state agency. The employee may submit medical or other evidence to the examining physician or to the appointing power. The examining physician shall make a written report of the examination to the appointing power. The appointing power shall provide a copy to the physician designated by the employee. (c) When the appointing power, after considering the conclusions of the medical examination and other pertinent information, concludes that the employee is unable to perform the work of his or her present position, but is able to perform the work of another position including one of less than full time, the appointing power may demote or transfer the employee to such a position. Except as authorized by the Department of Personnel Administration under Section 19837, the employee demoted or transferred pursuant to this section shall receive the maximum of the salary range of the class to which he or she is demoted or transferred, provided that the salary is not greater than the salary he or she received at the time of his or her demotion or transfer. (d) When the appointing power after considering the conclusions of the medical examination provided for by this section or medical reports from the employee's physician, and other pertinent information, concludes that the employee is unable to perform the work of his or her present position, or any other position in the agency, and the employee is not eligible or waives the right to retire for disability and elects to withdraw his or her retirement contributions or to permit his or her contributions to remain in the retirement fund with rights to service retirement, the appointing power may terminate the appointment of the employee. (e) The appointing power may demote, transfer, or terminate an employee under this section without requiring the employee to submit to a medical examination when the appointing power relies upon a written statement submitted to the appointing power by the employee as to the employee's condition or upon medical reports submitted to the appointing power by the employee. (f) The employee shall be given written notice of any demotion, transfer, or termination under this section at least 15 days prior to the effective date thereof. No later than 15 days after service of the notice, the employee may appeal the action of the appointing power to the board. The board, in accordance with its rules, shall hold a hearing. The board may sustain, disapprove, or modify the demotion, transfer, or termination. (g) Whenever the board revokes or modifies a demotion, transfer, or termination, the board shall direct the payment of salary to the employee calculated on the same basis and using the same standards as provided in Section 19584. (h) Upon the request of an appointing authority or the petition of the employee who was terminated, demoted, or transferred in accordance with this section, the employee shall be reinstated to an appropriate vacant position in the same class, in a comparable class or in a lower related class if it is determined by the board that the employee is no longer incapacitated for duty. Such a reinstatement to a position in a different agency may be made only with the concurrence of that agency. In approving or ordering the reinstatements, the board may require the satisfactory completion of a new probationary period. When the board finds the employee who was terminated, demoted, or transferred is no longer incapacitated for duty but there is no vacant position to which the employee appropriately can be appointed, the name of the employee shall be placed upon those reemployment lists that are determined to be appropriate by the board. (i) (1) If the appointing power, after considering the conclusions of the medical examination provided for by this section or medical reports from the employee's physician and other pertinent information, concludes that the employee is unable to perform the work of his or her present position or any other position in the agency and the employee is eligible and does not waive the right to retire for disability, the appointing power shall file an application for disability retirement on the employee's behalf. The appointing power shall give the employee 15 days written notice of its intention to file such an application and a reasonable opportunity to respond to the appointing power prior to the appointing power's filing of the application. However, the appointing power's decision to file the application is final and is not appealable to the State Personnel Board. (2) Notwithstanding Section 21153, upon filing the application for disability retirement, the appointing power may remove the employee from the job and place the employee on involuntary leave status. The employee may use any accrued leave eligible during the period of the involuntary leave. If the employee's leave credits and programs are exhausted or if they do not provide benefits at least equal to the estimated retirement allowance, the appointing power shall pay the employee an additional temporary disability allowance so that the employee receives payment equal to the retirement allowance. The appointing power shall continue to make all employer contributions to the employee's health plans during the period of the involuntary leave. (3) If the application for disability retirement is subsequently granted, the retirement system shall reimburse the appointing power for the temporary disability allowance which shall be deducted from any back disability retirement benefits otherwise payable to the employee. If the application is denied, the appointing power shall reinstate the employee to his or her position with back salary and benefits pursuant to subdivision (g), less any temporary disability allowance paid by the appointing power. The appointing power shall also restore any leave credits the employee used during the period of the involuntary leave. SEC. 12. Section 19401 of the Government Code is amended to read: 19401. All departments and agencies of state government shall establish an effective program of upward mobility for employees in low paying occupational groups, as defined by the State Personnel Board. In developing their upward mobility programs, departments and agencies shall endeavor to provide, to the greatest extent possible, the following opportunities for employees who meet criteria established by the department or agency, demonstrate the aptitude or potential for advancement, and wish to participate in: (a) Career counseling utilizing individual professional, administrative, and technical employees who can serve as career models, and a course in group career counseling. Each employee who wishes to participate in an upward mobility program should be required to develop a career development plan. (b) Appropriate academic counseling. (c) Training opportunities such as college programs related to special training programs. This training may include release time at reduced cost or no cost to the employee and may be offered in geographically remote areas through cooperative arrangements with other departments and colleges. (d) Training and development assignments. (e) On-the-job training. (f) Job restructuring, including the development of career ladders and lattices, and modifications of requirements where employment barriers exist. SEC. 13. Section 19402 of the Government Code is amended to read: 19402. All upward mobility programs shall include annual goals that include the number of employees expected to progress from positions in low paying occupational groups to entry-level technical, professional, and administrative positions, and the timeframe within which this progress shall occur. The State Personnel Board shall be responsible for approving each department's annual upward mobility goals and timetables. Any department or agency of state government that determines that it will be unable to achieve the goals may request the board for a reduction in the goals. If the board determines that the department or agency has not made a good faith effort to achieve the goals, the board shall hold public hearings to determine the reasons for the deficiencies and to establish a program to overcome these deficiencies. SEC. 14. Section 19403 of the Government Code is amended to read: 19403. The State Personnel Board shall, in cooperation with departments, establish bridging classifications and career ladders to provide upward mobility from jobs in low paying occupations to technical, professional, and administrative jobs on an ongoing basis. SEC. 15. Section 19404 of the Government Code is repealed. SEC. 16. Section 19405 of the Government Code is amended to read: 19405. The State Personnel Board shall annually submit a report to the Legislature on the performance of each department and agency in state government in meeting its obligations under this article. SEC. 17. Section 19406 of the Government Code is amended to read: 19406. The State Personnel Board shall prepare written guidelines for implementation of the upward mobility program described in this article within six months from the effective date of this article. The board shall involve representatives from a cross section of groups and organizations representing state employees, including target groups, both in the initial discussion and in the subsequent preparation of the guidelines. SEC. 18. Section 19585 of the Government Code is amended to read: 19585. (a) This section shall apply to permanent and probationary employees and may be used in lieu of adverse action and rejection during probation when the only cause for action against an employee is his or her failure to meet a requirement for continuing employment, as provided in this section. This section shall not apply to cases subject to the provisions of termination or demotion for medical reasons or retirement for disability. (b) An appointing power may terminate, demote, or transfer an employee who fails to meet the requirement for continuing employment that is prescribed by the board on or after January 1, 1986, in the specification for the classification to which the employee is appointed. Notwithstanding the foregoing, as prescribed by Article 11 (commencing with Section 19991) of Chapter 1 of Part 2.6, the appointing power may grant the employee a leave of absence in lieu of one of the actions specified above. In prescribing requirements for continuing employment, the board may specify standards to ensure that the requirements are consistently applied. The board may also specify when separation from a position for failure to meet requirements for continuing employment also constitutes separation from former positions that the employee held in other classifications that have the same or greater requirements for continuing employment. (c) The federal Immigration Reform and Control Act of 1986 requires termination of an employee for failure to meet the employment eligibility requirements of that act, and if this is the only cause for action against that employee, the termination shall be carried out pursuant to this section. If a person fails to meet the employment eligibility requirements of the federal Immigration Reform and Control Act of 1986, that information, when used under this section, except for purposes of the appeals process, shall be confidential, as provided in the federal Immigration Reform and Control Act of 1986. (d) For the purposes of this section, requirements for continuing employment shall be limited to the acquisition or retention of specified licenses, certificates, registrations, or other professional qualifications, education, or eligibility for continuing employment or advancement to the fully qualified level within a particular class series. The board shall prescribe procedures to ensure that employees affected by the requirements are informed of them. Requirements for continuing employment that are established for the purposes of this section shall not include medical, physical ability, work, or academy performance standards. (e) For the purposes of this section, an employee who has filed a proper and timely application for renewal of a required license, registration, or certificate shall be considered as having maintained the license, registration, or certificate unless it is subsequently denied, revoked, or suspended. (f) The employee shall receive at least five days' written notice of termination, demotion, or transfer and shall have the right to appeal the action to the board. (g) When the requirements for continuing employment have been regained, terminated, demoted, or transferred employees may be reinstated pursuant to Section 19140. (h) Any action under this section shall be considered nondisciplinary for the purposes of the State Civil Service Act and board rules. (i) Whenever the board revokes or modifies a termination, demotion, or transfer under this section, the board shall direct the payment of salary and benefits to the employee calculated on the same basis and using the same standards as provided in Section 19584. SEC. 19. Section 21419.5 is added to the Government Code, to read: 21419.5. The system shall deduct the amount of interim disability allowance made to a state member pursuant to subdivision (i) of Section 19253.5 from the member's retroactive disability allowance, and reimburse the state agency that has made the interim disability allowance payments. If the retirement disability allowance is not sufficient to reimburse the total interim disability allowance payments, an amount no greater than 10 percent of the member's monthly disability allowance shall be deducted and reimbursed to the state agency until the total interim disability allowance payments have been repaid. The state member and this system may agree to any other arrangements or schedule for the member to repay the interim disability allowance payments. If the disability application is denied, the system shall not be responsible for reimbursing the amount of interim disability allowance paid to the member by the state agency.