BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 2727 (Frazier)
As Introduced
Hearing Date: June 10, 2014
Fiscal: NF
Urgency: No
RD
SUBJECT
Courts: witness local agency employees
DESCRIPTION
Existing law requires that the compensation and expenses of
certain public employees subpoenaed to appear in court for
testimony in a civil action are paid by the subpoenaing party.
This bill would increase the amount that the subpoenaing party
must advance, together with the subpoena, from $150 to $275 for
each day that a local agency employee is required to remain in
attendance pursuant to the subpoena.
BACKGROUND
California law acknowledges that there is a cost when local
agency employees are subpoenaed as witnesses in civil trials
with regard to events or transactions they perceived or
investigated in the course of their duties. To offset that
cost, the subpoenaing party, however, is required to provide, at
the same time that the subpoena is provided, an advance of a fee
(advance deposit) for each day that the employee is required to
remain in attendance pursuant to that subpoena. The local
agency must return any amount later proven to have been in
excess, while the subpoenaing party must pay any difference
between the amount advanced and the actual amount.
Under California law, similar provisions exist with respect to
other (non-local agency) public entity employees, including
peace officers, firefighters, trial court employees, and state
and county employees. When the statute pertaining to these
public entity employees was first passed in 1963, the amount of
(more)
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the advance deposit was $25 for each day. By 1969, it was
raised to $45, followed by $75 in 1974, $125 by 1980, and $150
by 1986. That amount stayed static from 1986 until 2012,
despite increases seen in salaries and travel costs. Then, in
2012, AB 2612 (Achadjian, Ch. 377, Stats. 2012) was enacted to
raise the rate for public entity employees, including county
employees, to $275.
With respect to local agency employees, the $150 advance deposit
rate has not been raised since it was first implemented in 1991
by SB 109 (Kopp, Ch. 230, Stats. 1991). As a result, the
amount paid in advance is necessarily a smaller portion than the
actual cost and is more likely to be inadequate to cover the
actual expenses as the years pass without any increase. While
the local agency is entitled to demand payment for the remaining
portion, it has proven difficult at times and invoices can go
unpaid.
To address this issue and to close the widening gap between the
advanced amount and the actual amount owed, this bill would
raise the rate from $150 to $275 a day.
CHANGES TO EXISTING LAW
Existing law allows for employees of local agencies to be
subpoenaed in a civil action or proceeding as a witness with
regard to events or transactions they perceived or investigated
in the course of their duties, to which that local agency is not
a party. Existing law specifies that the employee shall receive
the salary of other compensation to which he or she is normally
entitled from that local agency during the time that he or she
prepares for his or her response and appearance, the time spent
traveling to and from the place where the court or other
tribunal is located, and while he or she is required to remain
at that place pursuant to the subpoena, as well as the actual
necessary and reasonable traveling expenses incurred in
complying with the subpoena. (Gov. Code Sec. 68096.1(a).)
Existing law defines "local agency" for these purposes to mean a
city, county, city and county, special district, redevelopment
agency, or any other political subdivision of the state. (Gov.
Code Sec. 68096.1(f).)
Existing law requires that the party at whose request the
subpoena is issued to reimburse the local agency for the full
cost incurred by the local agency in paying for the employee's
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salary or other compensation and traveling expenses, as
provided, for each day that the employee is required to remain
in attendance pursuant to the subpoena. (Gov. Code Sec.
68096.1(b).)
Existing law requires that the local agency refund any excess
amount paid if the actual expenses later prove to be less than
the amount tendered, and that the party at whose request the
subpoena is issued pay the difference between the amount
tendered and the actual expenses incurred by the local agency if
the amount proves to be more than the amount tendered. (Gov.
Code Sec. 68096.1(c)-(d).)
Existing law requires that the amount of $150, together with the
subpoena, must be tendered to the local agency for each day that
the employee is required to remain in attendance pursuant to the
subpoena. (Gov. Code Sec. 68096.1(b).)
This bill would raise the above amount to $275 for each day that
the employee is required to remain in attendance pursuant to the
subpoena.
COMMENT
1. Stated need for the bill
According to the author:
Local agencies are required 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. Under
current law, the party that requests the subpoena must pay
local agencies a $150 deposit for each day that an employee is
required to remain in attendance under subpoena. Additionally,
the requesting party must reimburse the local agency for the
actual employee costs beyond the $150 (and local agencies are
responsible for returning deposit funds if actual employee
expenses are less than the deposit).
However, in 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 sue in small
claims court. Except for in egregious cases, the work to
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prepare for such litigation might not justify what the local
agency would expect to recover.
The purpose of this bill is to treat local governments fairly
and consistently, and protect them from covering expenses for
which they may not receive required reimbursements.
The $150 deposit to local agencies has not been adjusted since
it became a requirement in the 1990s, despite the fact that
employee costs have risen in the past two decades and the
state has already increased the subpoena deposit amount for
some types of public employers and positions. Specifically, AB
2612 (Achadjian), Chapter 377, Statutes of 2012, increased the
amount from $150 to $275 for certain public employees,
including peace officers, firefighters, state employees, trial
court employees, and county employees.
There is not a public policy or practical reason why different
public entities and classifications should operate under
different subpoena deposit requirements.
Additionally, there is a potential conflict in the language
between Government Code sections 68096.1 and 68097.2 that
makes it unclear if the subpoena deposit amount for all county
employees is $150 or $275. This bill will address that
potential conflict.
2. Proposed increase in the daily reimbursement rate is
consistent with the rate for other public entity employees
This bill seeks to raise the amount that a requesting party must
advance together with a subpoena, for the attendance of
specified local agency employees, from $150 to $275 for each day
that the employee is required to remain in attendance pursuant
to the subpoena.
In support of this increase, the author contends that the
proposed advance deposit rate increase for subpoenaed local
agency employees is not only fair in light of the rate set for
other public employees above, but also necessary given that this
rate has not been increased since it was first implemented in
1991. The author also argues that this adjustment would remove
ambiguity as to whether the applicable advance deposit rate for
all county employees is the amount specified for non-local
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agency public employees (currently $275) or the amount specified
for local agency employees (currently $150, but proposed to be
raised to $275).
In an effort to substantiate the argument that this proposed
$125 rate increase is reasonable in light of the actual costs to
local agencies, the author has provided Committee staff with
information demonstrating that the average costs of certain City
of Vacaville employee classifications that were subpoenaed in
2012 (the latest information available) exceeds the proposed
$275 deposit rate, and far exceed the current $150 rate. For
example, city planners (who on average make $92,474.20 on an
annual basis) would cost the city upwards of $355.67 on a daily
(eight hour) basis. Including costs for two hours of
preparation and travel, that amount rises to $444.59. By way of
additional examples, the city would incur a daily cost of
$382.03, including the costs for an additional two hours of
preparation and travel, for a subpoenaed building inspector who
earns $79,461.67 annually (or $305.62 daily); and would incur
daily costs of $621.81 for the chief building official who earns
$129,337.00 annually (or $497.45 daily). On average, it appears
that the City of Vacaville would incur $347.49 in daily costs
for the average subpoenaed employee (excluding all fire and
police, and volunteer/intern/student/part-time seasonal
employees making under $20,000 a year), based on a yearly salary
average of $72,277.72 (or daily average of $277.99).
As a matter of public policy, it is important to keep in mind
the impact of a $125 increase on litigants today, as too
significant of an increase could have a detrimental impact on
the ability of persons to have their claims heard. While an
argument could be made that using the full-day figures might be
misleading as many witnesses are present in court for only a
portion of the day, it is important to note that the Legislature
has not increased this rate in over 20 years and the proposed
increase appears to be reasonable given the information provided
by the proponents of this bill and given the similar rate
increase for other public employees in recent years.
Support : American Federation of State, County and Municipal
Employees (AFSCME), AFL-CIO; California Law Enforcement
Association of Records Supervisors; California State Association
of Counties; California State Sheriffs' Association; City of
Vista; League of California Cities; Peace Officers Research
Association; Vacaville City Council
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Opposition : None Known
HISTORY
Source : City Attorney of the City of Vacaville
Related Pending Legislation : None Known
Prior Legislation :
AB 2612 (Achadjian, Ch. 377, Stats. 2012) See Background.
SB 405 (Committee on Local Government, Ch. 1195, Stats. 1993)
defined "local agency" as a city, county, city and county,
special district, redevelopment agency, or any other political
subdivision of the state, and made other corresponding changes.
SB 109 (Kopp, Ch. 230, Stats. 1991) enacted Government Code
Section 68096.1, the subject of this bill, and set the
reimbursement rate for subpoenaed local agency employees at
$150.
Prior Vote :
Assembly Floor (Ayes 76, Noes 0)
Assembly Judiciary (Ayes 9, Noes 0)
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