BILL ANALYSIS �
AB 2727
Page 1
Date of Hearing: April 1, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 2727 (Frazier) - As Introduced: February 21, 2014
PROPOSED CONSENT
SUBJECT : COURTS: WITNESS EXPENSES: LOCAL AGENCY EMPLOYEES
KEY ISSUE : SHOULD THE AMOUNT REQUIRED TO BE DEPOSITED WITH A
LOCAL PUBLIC AGENCY WHEN ITS EMPLOYEE IS SUBPOENAED TO APPEAR AS
A WITNESS IN CIVIL LITIGATION BE INCREASED, FOR THE FIRST TIME
SINCE 1991, TO REFLECT INCREASED COSTS SINCE THAT TIME AND TO
MATCH THE DEPOSIT AMOUNT CURRENTLY APPLICABLE TO STATE AND
COUNTY EMPLOYEES?
SYNOPSIS
This non-controversial bill seeks to increase, for the first
time in over 20 years, the amount that a party must deposit with
a local public agency when the party subpoenas an employee of
that agency to attend a civil action or proceeding as a witness.
According to proponents, the bill is needed because the current
$150 deposit amount applying to local public agencies is
inadequate and has not been increased since 1991, despite the
fact that employee salaries and other expenses have
significantly increased over that time. While existing law
allows local agencies to invoice for remaining expenses above
the $150 deposit amount, proponents contend these invoices often
go unpaid and ultimately uncollected because of the costs
associated with collection, leaving the local agency holding the
bag. Proponents correctly note that the amount sought to be
increased by this bill is not a fee increase, but a deposit
increase. The proposed increase in the deposit amount from $150
to $275 would, however, ensure the local public agency holds a
larger guaranteed portion of the actual total cost should the
party subsequently refuse to pay any additional amount above the
deposit that it owes. In addition, the increase sought by this
bill would match this amount ($275) with the deposit amount that
currently applies to subpoenas of state and county employees,
thereby increasing consistency and promoting fairness. The bill
is supported by the League of Cities and law enforcement
recordkeepers, and has no known opposition.
AB 2727
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SUMMARY : Seeks to increase the amount to be deposited with a
local public agency when a party subpoenas an employee of that
agency to attend a civil action or proceeding as a witness.
Specifically, this bill increases, from $150 to $275, the amount
that a party must tender to the local public agency for each day
that an employee of that agency is required to remain in
attendance pursuant to a civil subpoena issued at the party's
request.
EXISTING LAW :
1)Provides for subpoenaing the attendance of any employee of a
local public agency with regard to events or transactions he
or she had perceived or investigated in the course of their
duties, and for the payment and reimbursement of the
employee's compensation and traveling expenses incurred in
complying with the subpoena. (Government Code Section
68096.1(a). All further references are to this code unless
otherwise stated.)
2)Requires the party at whose request the subpoena is issued to
reimburse the employing public agency for these costs by
tendering the amount of $150 to the person accepting the
subpoena for each day the employee of the local public agency
is required to remain in attendance pursuant to the subpoena.
(Section 68096.1(b).)
3)Provides for subpoenaing the attendance of peace officers,
firefighters, and state, county and trial court employees with
regard to events or transactions they have perceived or
investigated in the course of their duties, and for the
payment and reimbursement of the employees' compensation and
traveling expenses incurred in complying with the subpoena.
(Section 68097.2(a).)
4)Requires the party at whose request the subpoena is issued to
reimburse the employing public entity for these costs by
tendering the amount of $275 to the person accepting the
subpoena for each day the peace officer, firefighter, or
state, county or court employee is required to remain in
attendance pursuant to the subpoena. (Section 68097.2(b).)
5)Requires the employing public entity, for all of the types of
employees described above, to refund any excess amount paid,
and requires the party at whose request the subpoena is issued
AB 2727
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to pay any shortfall, relative to the actual expenses incurred
by the public entity in connection with the public employee
complying with the subpoena. (Section 68096.1, subd. (c) and
(d); Section 68097.2, subd. (c) and (d).)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : This non-controversial bill seeks to increase, for
the first time in over 20 years, the amount that a party must
deposit with a local public agency when the party subpoenas an
employee of that agency to attend a civil action or proceeding
as a witness.
Current law requires local agencies to pay an employee's regular
salary and other compensation when the employee is required by
subpoena to attend a civil action or proceeding as a witness in
litigation in a matter regarding an event or transaction that he
or she perceived or investigated, in the course of his or her
duties, when the public entity is not a party. Existing law
also requires the party that requested the subpoena to tender to
the local agency a $150 deposit for each day that its employee
is required to remain in attendance pursuant to the subpoena.
Should the actual costs exceed $150, the requesting party is
further required to reimburse the local agency for the actual
costs above that amount. Correspondingly, the local agency must
return deposit funds left over if the actual employee expenses
do not exceed the deposit amount of $150.
This bill provides a long overdue increase in the subpoena
deposit for local agency employees.
According to proponents, the bill is needed because the $150
deposit amount applying to local public agencies is inadequate
and has not been increased since 1991, despite the fact that
employee salaries and other expenses have significantly
increased over that time. While current law allows local
agencies to invoice for remaining expenses above the $150
deposit amount, proponents contend these invoices often go
unpaid and uncollected because of the costs associated with
collection. The author explains:
[I]n practice, local governments have found that
collecting amounts beyond the $150 deposit can sometimes
be challenging and administratively difficult. Generally,
a local government's legal remedy for non-payment is to
AB 2727
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sue in small claims court. Except for in egregious cases,
the work to prepare for such litigation might not justify
what the local agency would expect to recover.
Proponents correctly note that the amount sought to be increased
by this bill is not a fee increase, but a deposit increase.
Under existing law, the party requesting the subpoena is
responsible for all of the actual costs associated with the
employee's attendance at the civil proceeding, no more and no
less, and the party is entitled to a refund if the actual costs
never exceed the deposit. The increase in the deposit amount
will, however, ensure the local public agency holds a larger
guaranteed portion of the actual total cost should the party
subsequently refuse to pay any additional amount above the
deposit that it owes. This bill seeks to protect local agencies
by minimizing financial loss the agency may otherwise end up
absorbing when invoices to the party that requested the subpoena
go unpaid.
This bill also promotes consistency and fairness by leveling
this deposit amount with the $275 deposit that applies to state,
county, and court employees. AB 2612 (Achadjian), Chapter 377,
Statutes of 2012, increased the deposit amount from $150 to $275
that applies to peace officers, firefighters, state employees,
trial court employees, and county employees when they are
subject to subpoena to appear as a witness in civil litigation.
In light of this recent change, proponents contend it is unfair
to local public agencies to allow only a $150 deposit, as
compared to their state and public agency counterparts who are
currently entitled to a $275 deposit. According to the author,
"There is not a public policy or practical reason why different
public entities and classifications should operate under
different subpoena deposit requirements."
Furthermore, according to the author, the difference between the
two statutory amounts makes it unclear whether the deposit
amount for all county employees is $150 or $275. Confusion
arises because Section 68097.2 (requiring $275) expressly
applies to county employees, while Section 68096.1 (requiring
$150) applies to employees of a local agency but defines "local
agency" to include a county, or city and county, among other
things. (Section 68096.1, subd. (f).) This bill would
eliminate that ambiguity by harmonizing those two sections and
establishing a consistent deposit standard in the amount of
$275.
AB 2727
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REGISTERED SUPPORT / OPPOSITION :
Support
California Law Enforcement Association of Records Supervisors
California State Sheriffs' Association
League of California Cities
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334