Tuesday, April 27, 2010

AB 1744: Public Employees' Bill of Rights Act

AB 1744 (Portantino)—the “Public Employees' Bill of Rights Act”—recently passed the Assembly Committee on Public Employees, Retirement and Social Security and is now headed to Appropriations. AB 1744 is a “gut and amend” that started out as a bill on enforcing monetary judgments. As currently written, the bill sets forth a “Bill of Rights” that applies only to state civil service employees. Most of the bill just reaffirms existing law. However, there is one significant change. Currently, the statute of limitations for taking disciplinary action against a state employee is 3 years from the date of the misconduct. (Gov. Code 19635.) AB 1744 would amend the limitations period to be 1 year.

I have several major objections to this change. First, the change is purportedly modeled after the Public Safety Officers Procedural Bill of Rights (PSOBOR) (Gov. Code 3300 et. seq.) and the Firefighters Procedural Bill of Rights Act (FPBOR) (Gov. Code 3250 et. seq.) It’s true that both the PSOBOR and FPBOR have a 1-year limitations period for bringing disciplinary actions. However, those statutes differ significantly from the proposed language in AB 1744. For example, the 1-year limitations period under both the PSOBOR and FPBOR is triggered by the date of discovery of the underlying misconduct, not that date the misconduct actually occurred. In contrast, under AB 1744 the limitations period is based on when the misconduct actually occurred.  The difference is significant since misconduct is not always discovered right away, even with due diligence.  Indeed, that's the reason why the current limitations period is 3 years.  If the Legislature wants to shorten the limitations period to 1 year, it should also change the triggering event to be discovery of the misconduct, instead of when the conduct actually occurred.

Second, the current 3-year limitations period under Government Code section 19635 expressly recognizes the problem of late discovery by providing that disciplinary actions, “based on fraud, embezzlement, or the falsification of records shall be valid, if notice of the adverse action is served within three years after the discovery of the fraud, embezzlement, or falsification.” (Emphasis added.) AB 1744 completely erases this sentence from Government Code section 19635. Thus, under AB 1744, an employee can commit fraud against the state, and as long as he or she hides it for more than a year, no discipline can be brought.

Third, AB 1744 does not provide for any “tolling” of the 1-year limitations period. Generally, I do agree that 1 year from discovery should be sufficient time to investigate and bring a disciplinary action. However, there are certain situations where it may not be enough time. This primarily occurs where the misconduct has also triggered a criminal investigation. In that situation, the employer often has to wait to take any administrative action pending completion of the criminal proceedings. Both the PSOBOR and FPBOR provide that the 1-year limitations period is “tolled” in the event of any criminal proceeding. AB 1744 does not provide this same protection.

I can certainly understand an employee’s frustration with being served a notice of discipline for misconduct that occurred 3 years earlier. From a human resources perspective, discipline is most effective if given close in time to the misconduct or performance problem. So as I mentioned above, I generally don’t have a problem with a 1-year limitations period. However, I do have a problem with how AB 1744 is written since it is based on when the conduct actually occurred instead of discovery, and doesn’t provide for tolling where necessary.

AB 1744 is sponsored by various state employee unions, such as the Union of American Physicians and Dentists, Service Employees International Union Local 1000, and American Federation of State, County and Municipal Employees. As of this date, there is no recorded opposition.