BILL ANALYSIS �
AB 2032
Page 1
GOVERNOR'S VETO
AB 2032 (Bonta)
As Amended August 4, 2014
2/3 vote
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|ASSEMBLY: |59-16|(April 10, |SENATE: |27-7 |(August 7, |
| | |2014) | | |2014) |
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|ASSEMBLY: |62-15|(August 14, | | | |
| | |2014) | | | |
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Original Committee Reference: P.E., R. & S.S.
SUMMARY : Specifies that the burden of proof, if the State
Personnel Board (SPB) fails to act within specified statutorily
required timeframes to render a decision in an investigation or
evidentiary hearing of a disciplinary action resulting in
termination against a state employee, to remain with the state
employer in proceedings for a writ of mandate brought by the
employee in superior court to appeal the termination.
The Senate amendments correct an incorrect code reference and
make other clarifying changes to the bill.
EXISTING LAW :
1)Establishes the SPB which is responsible for administering a
merit system of civil service employment within California
state government, and establishing administrative procedures
to resolve appeals of alleged violations of civil service laws
and rules.
2)Requires the SPB, when conducting a hearing or investigation
regarding an appeal by an employee, to commence the hearing
within a reasonable time after the filing of the appeal.
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3)Authorizes an employee to make a written request for a
priority hearing by the SPB for an appeal of an action that
resulted in the employee's termination if an evidentiary
hearing has not commenced within six months of the filing of
the appeal.
4)Requires the SPB to schedule an evidentiary hearing at a
location designated by the SPB within 60 days of receipt of
the written request.
5)Requires the SPB to issue a decision within a reasonable time
after the conclusion of the hearing or investigation and
specifies that the period of time between the filing of the
appeal and the SPB's decision may not exceed six months.
6)Allows an employee to waive the six-month period; however,
should the employee not waive these periods, a failure to
render a timely decision by the SPB constitutes an exhaustion
of all available administrative remedies.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS : According to the author, "When an employee is
dismissed from state service, existing law requires the SPB to
render a final decision regarding that individual in no longer
than six months from the filing of an appeal. During these
types of administrative proceedings, the burden of proof is
always in the employing agency to demonstrate just cause for its
action. However, when the SPB fails to come to a decision in a
timely manner, an employee may file a petition with the superior
court to have the matter heard in court. Under these
circumstances, based on the decisions in California Correctional
Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th
1133, the burden of proof switches from the employing agency to
the employee.
"This forces an employee who was dismissed from state service to
make the difficult decision of either waiting an indefinite
period of time or try to expedite resolution only to have the
tables switched to prove the action was not warranted. To
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reverse this burden when the SPB fails to act in a timely manner
would unfairly penalize the employee, and would violate the
employee's fundamental due process rights guaranteed by Skelly
v. State Personnel Bd. (1975) 15 Cal.3d 194."
The author concludes that "this bill would state that if the SPB
fails to act within its statutory timeframe, the burden of proof
remains with the employing agency, if the case goes to court.
This allocation properly balances and preserves the respective
rights and duties of the parties."
AB 692 (Hall), Chapter 682, Statutes of 2011, authorized a state
employee appealing a termination action to request a priority
hearing from the SPB if an evidentiary hearing has not begun
within six months of the filing of the appeal, required, within
60 days of receiving the request, the SPB to schedule an
evidentiary hearing, and authorized the SPB to use electronic
media to conduct all, or any portion of, any hearing.
AB 1062 (Jones-Sawyer), Chapter 427, Statutes of 2013, in part,
revised the SPB's requirements related to rendering decisions
within a reasonable time after the conclusion of a hearing or
investigation and instead required the SPB to reach a decision
within six months and deletes the SPB's authorization to extend
the six-month period by 45 additional days.
GOVERNOR'S VETO MESSAGE :
"If the State Personnel Board fails to issue a decision on a
disciplinary appeal within six months, this bill requires the
burden of proof to remain with the state employer if the
employee pursues court action.
"Last year, I signed AB 1062 that requires the Board to issue a
decision within the six month timeframe. The law hasn't even
been in place a year. Let's give it a little more time before
making fundamental changes, as proposed by this bill."
Analysis Prepared by : Karon Green / P.E., R. & S.S. / (916)
319-3957
AB 2032
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FN: 0005684