California Code of Regulations

TITLE 2. Administration

Division 1. Administrative Personnel

Chapter 1. State Personnel Board

Subchapter 1. General Civil Service Regulations

(Originally Printed 3-22-45)

PREFATORY NOTE

Articles 1 through 25, inclusive, are promulgated under the authority of Section 18701, Government Code, unless otherwise noted.

Article 1. Definitions

For the statutory definitions, refer to Section 18520 of the Act and sections following.

§1. Definitions.

History

Unless the context requires otherwise, the definitions hereinafter set forth govern the construction of these regulations.

HISTORY

1. Chapter 1 originally published 3-22-45 (Title 2).

2. Revision of chapter 1 filed 4-11-47; effective 5-11-47 (Register 7).

3. Repealer of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

4. Change without regulatory effect amending subchapter heading and section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§2. Act.

“Act” means the State Civil Service Act and Part 1 of Division 5 of Title 2 of the Government Code of the State of California.

§3. Agency.

“Agency” includes “department,” “board,” “office,” “authority,” “commission,” and every other governmental unit.

§3.5. Appointing Power.

History

“Appointing Power” means a person or group defined by statute as having authority to make appointments to positions in the state civil service. This in no way affects the delegation of authority, as defined in Section 7 of the Government Code.

HISTORY

1. New section filed 11-1-72; effective thirtieth day thereafter (Register 72, No. 45).

§4. Board.

“Board” means the State Personnel Board of the State of California.

§5. Employee.

History

“Employee” includes every officer and employee subject to the act or these regulations.

HISTORY

1. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§6. Executive Officer.

“Executive Officer” means the executive officer of the board.

§6.1. Use of Month or Calendar Month.

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18538.1, Government Code.

HISTORY

1. Amendment filed 11-7-69; effective thirtieth day thereafter (Register 69, No. 45). For prior history, see Register 68, No. 49.

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Repealer filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).

§6.2. Qualifying Monthly Pay Period.

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18538.1 and 19533.04, Government Code.

HISTORY

1. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 69, No. 45.

2. Amendment filed 11-15-78; effective thirtieth day thereafter (Register 78, No. 45).

3. Amendment filed 10-3-80; effective thirtieth day thereafter (Register 80, No. 40).

4. Repealer filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).

§6.3. Qualifying Monthly Pay Period for Hourly and Daily Rate Employees.

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18538.1, 19530 and 19533.04, Government Code.

HISTORY

1. New section filed 10-3-80; effective thirtieth day thereafter (Register 80, No. 40).

2. Repealer filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).

§6.4. Break in Service.

Note • History

For the purposes of the act and these regulations, an employee shall be deemed to have a break in the continuity of his or her state civil service due to a permanent separation only if:

(a) the employee permanently separates from state service as defined by Section 446 and

(b) then remains outside state service for at least eleven consecutive working days.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19996.1 and 19998.3, Government Code.

HISTORY

1. New section filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).

2. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§7. Regulations.

History

“Regulations” means the regulations of the board.

HISTORY

1. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§8. Good Faith Appointment Requirements and Sanctions for Violation.

Note • History

To be valid, a civil service appointment must be made and accepted in “good faith” under the civil service statutes and board regulations. For purposes of administering the civil service statutes, including Government Code Sections 19257 and 19257.5 and board Regulations, “good faith” is presumed to exist in the following circumstances:

(a) In order to make an appointment in “good faith,” an appointing power and all officers or employees to whom an appointing power delegates appointment authority must:

(1) Intend to observe the spirit and intent of the law; and

(2) Make a reasonable and serious attempt to determine how the law should be applied; and

(3) Assure that positions are properly classified; and

(4) Assure that appointees have appropriate civil service appointment eligibility; and

(5) Intend to employ the appointee in the class, tenure and location to which appointed under the conditions reflected by the appointment document; and

(6) Make a reasonable and serious attempt to provide the relevant reference materials, training, and supervision necessary to avoid any mistakes of law or fact to the persons responsible for the pertinent personnel transactions; and

(7) Act in a manner that does not improperly diminish the rights and privileges of other persons affected by the appointment, including other eligibles.

Any officer or employee who violates any of the foregoing provisions of this regulation, or any other officer or employee in a position of authority who directs any officer or employee to violate any of these provisions, shall be subject to civil or criminal sanctions as provided in Government Code Sections 19680, 19681, 19682, 19683, 19764, as well as adverse action as provided in Government Code Sections 19572, 19583.5, or 19682.

(b) In order to accept an appointment in “good faith,” an employee must:

(1) Intend to serve in the class to which the employee is being appointed under the tenure, location and other elements of the appointment as reflected by the appointment document; and

(2) Provide the appointing power with complete, factual, and truthful information necessary for a proper appointment; and

(3) Make a reasonable attempt to seek correction of any aspects of the appointment that the employee knows are illegal.

Violation of any of the foregoing provisions of this section by an employee shall be cause for adverse action.

If a lack of good faith exists on the part of either the appointing power or the employee, the executive officer may cancel the improper appointment without regard to the one-year limitation set forth in Government Code Section 19257.5 subject to the provisions of Section 266.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19257, 19257.5, 19572, 19583.5, 19680, 19681, 19682 and 19683, Government Code.

HISTORY

1. New section filed 1-21-80 as procedural and organizational; effective upon filing (Register 80, No. 4).

2. Amendment filed 1-18-82; effective thirtieth day thereafter (Register 82, No. 4).

3. Change without regulatory effect amending opening paragraph, subsections (a)(7) and (b)(3) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§9. Compensation.

Note • History

The word “compensation” as used in Government Code Section 19257 includes salary, vacation, sick leave, health benefits, retirement benefits, salary step advancement and State service credit for determining vacation earning rates and eligibility for a salary above the minimum rate when legally appointed to the class, Industrial Disability Leave, Nonindustrial Disability Insurance benefits and red circle rates. “Compensation” also includes the continuity of service when used to determine the employee's eligibility for these compensation items.

“Compensation” as used in Government Code Section 19257 does not include tenure in a position, seniority credits, permissive reinstatement, eligibility, mandatory reinstatement rights, eligibility to take promotional examinations, career credits, permanent or probationary status and service toward completion of the probationary period; nor continuity of service when used to determine the employee's right to or eligibility for any of the foregoing.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19257, Government Code.

HISTORY

1. New section filed 1-18-82; effective thirtieth day thereafter (Register 82, No. 4).

§10. Disability.

Note • History

(a) “Individual with a disability” means, with respect to an individual (1) having a physical or mental impairment that substantially limits one or more major life activities of such individual; (2) having a record of such impairment; or (3) being regarded as having such an impairment.

(b) “Physical Impairment” means any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin and endocrine.

(c) “Mental impairment” means any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

(d) “Major life activities” means activities that an average person can perform with little or no difficulty, such as: walking, speaking, breathing, performing manual tasks, seeing, hearing, learning, caring for oneself, working, sitting, standing, lifting, or reaching, etc.

(e) “Substantially limits” means the individual with a disability is: 1) unable to perform a major life activity that the average person in the general population can perform; or 2) significantly restricted as to the condition, manner or duration under which the average person in the general population can perform that same major life activity.

NOTE

Authority cited: Sections 18701, 19231, 19241 and 19792, Government Code. Reference: Sections 19230, 19231 and 19240-44, Government Code; and Federal Public Health and Welfare Code, Title 42, Chapter 126, Sections 12101-12117 (Americans with Disabilities Act of 1990 [ADA]).

HISTORY

1. New section filed 10-20-94; operative 11-21-94 (Register 94, No. 42).

Article 2. General Provisions

For the General Provisions of the State Civil Service Act, refer to Section 18570 of the act and sections following.

§21. Citation of Regulations.

History

Each section of these regulations is a regulation of the board and may be cited as such. Thus, this section, whether appearing in the California Code of Regulations or elsewhere, may be cited as “Section 21” or “2 CCR 21.”

HISTORY

1. Change without regulatory effect amending section heading and text filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§22. Effect of Headings.

Article and section headings contained herein shall not be deemed to govern, limit, modify or in any manner affect the scope, meaning, or intent of the provisions of any article or section hereof.

§23. Continuing Provisions.

History

The provisions of these regulations, insofar as they are substantially the same as regulations of the board superseded hereby and relating to the same subject matter, shall be construed as restatements and continuations and not as new enactments. Rights, privileges, and remedies accrued under any regulations superseded by these regulations are continued in full force and effect unless abolished by some contrary provision herein.

HISTORY

1. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§24. Reports.

In order that the work of the board may be expedited, the appointing power of every state agency shall file with the board such reports as the board or the executive officer may require. Reports shall be submitted on such forms and filed at such times as may be prescribed by the board or the executive officer.

Article 3. Administration

For the general statutory provisions on this subject, refer to Section 18650 of the act and sections following.

§31. Regular Meetings.

Note • History

The time and place of each regular meeting of the board shall be fixed by the board not less than one month preceding the date of the meeting.

NOTE

Reference: Sections 18652 and 18653, Government Code.

HISTORY

1. Amendment filed 3-9-59; effective thirtieth day thereafter (Register 59, No. 5).

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§32. Special Meetings. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 11125, Government Code.

HISTORY

1. Amendment filed 10-26-79; effective thirtieth day thereafter (Register 79, No. 43).

2. Repealer 12-31-85; effective thirtieth day thereafter (Register 86, No. 1).

§33. Emergency Meetings.

Note • History

Emergency meetings of the board shall be called by the president of the board at any time and place within the State of California upon the request of not less than three members of the board.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 11125.5 and 18653, Government Code

HISTORY

1. Amendment filed 12-31-85; effective thirtieth day thereafter (Register 86, No. 1).

§34. Calendar.

Note • History

(a) All matters to be presented for consideration by the board at a regular meeting shall be placed upon the board's calendar without undue delay. The calendar agenda shall be distributed to every party who has requested a copy at least ten days prior to such regular meeting.

(b) The non-hearing calendar is defined as agenda items submitted by either the board staff or the Department of Personnel Administration staff which the executive officer determines can be acted upon by the board without a hearing.

(c) Interested parties with concerns or who oppose any item on the non-hearing calendar may submit a written notice to the executive officer stating the nature of the concern or opposition, and explaining how the issue of concern is a merit employment matter within the board's scope of authority as set forth in the State Civil Service Act (Government Code Section 18500 et seq.) and Article VII, California Constitution. Such written notice must be received by the executive officer not later than close of business on the Wednesday before the board meeting at which the item is scheduled.

(d) In investigating matters outlined in subsection (c) the executive officer shall act as the board's authorized representative, and shall recommend to the board either (1) to act on the agenda item as submitted, without a hearing or (2) to hear the item, including a staff recommendation on resolution of the merit issues in dispute.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 11125, 18654.5 and 18675, Government Code.

HISTORY

1. Amendment filed 3-9-59; effective thirtieth day thereafter (Register 59, No. 5).

2. Repealer of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Amendment filed 12-31-85; effective thirtieth day thereafter (Register 86, No. 1).

4. Amendment of section filed 9-30-91; operative 10-30-91 (Register 91, No. 52).

5. Editorial correction adding inadvertently omitted subsection (d) (Register 95, No. 5).

§34.5. Notice of Regular Meeting Agenda.

Note • History

Whenever notice of an agenda item is required to be given of matters to be heard or considered by the board and a different method is not provided, the executive officer shall cause a notice to be posted at the office of the board at Sacramento at least ten (10) days before the date of hearing giving the nature of the matter and giving notice that all persons interested may appear, at a time and place mentioned in the notice, in support of or in opposition to the matter. Notice of agenda item shall be provided at least ten days in advance of the meeting date, to any person who requests such notice in writing. In cases of emergency the executive officer may shorten the period of notice to not less than one (1) hour.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 11125, 11125.5 and 18575, Government Code.

HISTORY

1. New section filed 11-7-49 (Register 18, No. 5).

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15.

3. Amendment filed 12-31-85; effective thirtieth day thereafter (Register 86, No. 1).

§35. Continuances of Items Under Submission.

Note • History

All matters appearing on the calendar that are not disposed of by a motion to vote by the board shall be considered as items under submission and shall appear on subsequent calendar(s) as items of unfinished business until such a motion is made.

Items may be taken under submission whenever time does not permit sufficient deliberation to call for a motion to vote or when the board requires additional information prior to voting.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18653, Government Code.

HISTORY

1. Amendment filed 12-31-85; effective thirtieth day thereafter (Register 86, No. 1).

§35.5. Reconsideration and Action.

Note • History

In any meeting of the board, a vote of three concurring members is required to make any action effective whether that action is to grant or deny an appeal, request, or other matter properly before the board. Where a matter requires such action and a motion to take such action fails for lack of three concurring votes, the matter shall not be dropped from the calendar. Upon the adoption of a motion to reconsider made by any member of the board at the same, or succeeding meeting, the matter shall be reconsidered. If a motion to reconsider is not adopted within three months, the matter shall be dropped from the calendar and the appeal or request shall be deemed denied.

A member of the board may participate in the reconsideration of a matter even though the member was not present during the original consideration if the interested parties agree or if the member has reviewed a transcript of the proceedings and the documents and other materials before the board.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18653, Government Code.

HISTORY

1. New section filed 6-8-59; effective thirtieth day thereafter (Register 59, No. 9).

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Amendment filed 12-31-85; effective thirtieth day thereafter (Register 86, No. 1).

§36. Roster. [Repealed]

Note • History

NOTE

Reference: Section 18704, Government Code.

HISTORY

1. New section filed 11-7-49 (Register 18, No. 5).

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Notice of Repeal filed 6-25-87 by OAL pursuant to Government Code Section 11343.8; operative 7-25-87 (Register 87, No. 26).

§37. Delegation Authority of the Board and Executive Officer.

Note • History

Whenever it is stated in these regulations that the “board” may or shall exercise or discharge any power, duty, purpose, function, or jurisdiction, the State Personnel Board specifically has reserved the same for its own, exclusive action. Whenever it is stated that the “board” or the “executive officer” may or shall exercise or discharge any power, duty, purpose, function, or jurisdiction, either the State Personnel Board or the executive officer thereof may take action thereon. Whenever it is stated that the “executive officer” may or shall exercise or discharge any power, duty, purpose, function, or jurisdiction, the executive officer of the State Personnel Board has the exclusive power to act thereon. Any party in interest may appeal to the State Personnel Board for review of the actions and decisions of the executive officer.

Nothing herein prohibits the executive officer from redelegating to subordinates or to an appointing power he or she designates as provided by Sections 18654 and 18930.5 of the Government Code.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18654 and 18930.5, Government Code.

HISTORY

1. New section filed 7-10-56; effective thirtieth day thereafter (Register 56, No. 13).

2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Amendment filed 11-20-87; operative 12-20-87 (Register 87, No. 48).

4. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

Article 3.5. Selection Standards

§50. Merit Selection Manual.

Note • History

Each agency and department with delegated or decentralized selection responsibilities shall develop and maintain a selection program as specified in the State Personnel Board's Merit Selection Manual: Policy and Practices, dated October 2003, and in accordance with existing laws and rules. The State Personnel Board's Merit Selection Manual: Policy and Practices, dated October 2003, is hereby incorporated by reference in its entirety.

NOTE

Authority cited: Sections 18211 and 18701, Government Code. Reference: Article 7, Sections 1 and 3, California Constitution; and Sections 18213, 18500, 18900, 18930, 18950 and 19050, Government Code.

HISTORY

1. New article 3.5 (section 50) and section filed 2-6-2003; operative 2-6-2003. Submitted to OAL for printing only pursuant to Government Code section 18213 (Register 2003, No. 7).

2. Amendment of Merit Selection Manual: Policy and Practices (incorporated by reference) and amendment of section and Note filed 5-17-2004; operative 5-17-2004. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 2004, No. 21).

3. Amendment of Merit Selection Manual: Policy and Practices (incorporated by reference) and amendment of section and Note filed 5-17-2004; operative 5-17-2004. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 2004, No. 22).

Subchapter 1.2. Hearings and Appeals

§51. Scope of Article. [Renumbered]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. Amendment filed 11-7-49 (Register 18, No. 5).

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Amendment filed 4-26-90; operative 5-26-90 (Register 90, No. 22).

4. Change without regulatory effect amending article heading and section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

5. Renumbering of former section 51 to section 51.1 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

6. Change without regulatory effect redesignating former article 4 as new subchapter 1.2 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).

Article 1. General Provisions

§51.1. Scope of Subchapter.

Note • History

The regulations in this subchapter shall apply to all Appellants, Complainants, and Respondents and all hearings and investigative reviews conducted by the Board or its designees.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. Renumbering and amendment of former sections 52, 53 and 56 to section 51.1 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Registers 87, No. 48; and 86, No. 1.

2. Change without regulatory effect amending opening sentence and subsection (c) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

3. New subarticle 1 (sections 51.1-51.3), renumbering of former section 51.1 to section 51.2 and renumbering and amendment of former section 51 to new section 51.1 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

4. Change without regulatory effect redesignating former subarticle 1 as new article 1 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).

5. Change without regulatory effect amending section heading and section filed 10-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 41).

§51.2. Definitions.

Note • History

Unless the context requires otherwise, the following definitions shall apply to regulations in this article.

(a) “Administrative Law Judge” or “ALJ” means a person employed by the State Personnel Board (SPB) to conduct evidentiary hearings under this article.

(b) “Adverse action” means an action taken by an appointing power to discipline an employee and includes formal reprimand, transfers for disciplinary reasons, suspension, reduction-in-salary, demotion and dismissal.

(c) “Agency” means any agency, department, board, commission, district, or other designated entity that employs state civil service employees.

(d) “Appeal” means any written request for relief or review filed as provided in these regulations and includes “application,” “petition,” “protest,” “complaint” and “answer” pursuant to section 19575 of the Government Code.”

(e) “Appeals division” means the Appeals Division of the State Personnel Board.

(f) “Appellant” means the person or organization filing any appeal with the SPB.

(g) “Appointing authority” or “appointing power” means the individual or entity that possesses the final authority to appoint and/or dismiss a state employee.

(h) “Board” means the five-member State Personnel Board.

(i) “Brought to Hearing” means when the record is opened for the purposes of initiating the evidentiary hearing and receiving evidence.

(j) “Business days” means all days that all state agencies are open for business, excluding weekends, holidays or other designated days. For purposes of these regulations, unless otherwise indicated a business day commences at 8:00 a.m. and concludes at 5:00 p.m. The term “business days” includes the term “working days.”

(k) “Complainant” means the person or organization filing a complaint of discrimination, harassment, retaliation, or denial of reasonable accommodation for a known physical or mental disability.

(l) “Constructive Medical Action” means an involuntary transfer or demotion, or a refusal to permit an employee to return to work for purported medical reasons without providing the employee those due process protections set forth in Government Code section 19253.5.

(m) “Days” means calendar days, unless otherwise indicated.

(n) “Examination appeal” means appeals concerning allegations that: an Appellant's civil service examination was not accepted by the examining agency; civil service examination statutes, regulations or policies were violated during the examination process; and/or improprieties in the appointment or promotion process.

(o) “Evidentiary hearing” means a hearing conducted before an ALJ, during which: opening and closing arguments are permitted; direct examination and cross examination of witnesses is permitted; physical and documentary evidence may be introduced and admitted; and a proposed decision is submitted by the ALJ for review by the Board.

(p) “Executive Officer” means the Executive Officer of the State Personnel Board, as designated in Article VII, section 3, subdivision (b), of the California Constitution.

(q) “Hearing Officer” means a State Personnel Board employee designated by the Board, the Executive Officer, or other appropriate authority, to conduct a hearing concerning appeals from pre-employment medical or psychological disqualification, appeals from a failure of a pre-employment drug test, and other appeals as deemed appropriate, in accordance with the provisions of section 54.1.

(r) “Informal Hearing” means a hearing conducted pursuant to Government Code sections 11445.10 through 11445.60 by a Presiding Officer.

(s) “Investigative Officer” means a State Personnel Board employee designated by the Board, the Executive Officer, or other appropriate authority, to conduct an investigative review concerning merit issue appeals, requests-to-file-charges, appeals from withhold from certification, appeals from voided appointment, examination appeals, requests from dismissed employees to take civil service examinations, and other appeals as deemed appropriate.

(t) “Investigative Review” means an investigation conducted by an Investigative Officer during which the Investigative Officer shall have the authority to conduct the investigation in accordance with the provisions of section 55.1.

(u) “Investigatory Hearing” means an evidentiary hearing conducted by the Chief ALJ's designee in accordance with the provisions of section 55.2.

(v) “Medical Action” means an action to transfer, demote, dismiss, or to apply for involuntarily disability benefits on behalf of an employee for asserted medical reasons, pursuant to the provisions of Government Code section 19253.5.

(w) “Merit issue appeal” means an appeal concerning allegations that the State Civil Service Act or State Personnel Board regulation or policy related to applications, appointments and promotions within the civil service system has been violated by an agency. Merit issue appeals include, but are not limited to: allegations of interference with promotional opportunities, disputes concerning the effective date of appointments and promotions, and the applicability of alternate salary ranges. Merit issue appeals do not include appeals of actions that are specifically provided for elsewhere in law or in board regulations.

(x) “Non-punitive action” means an action to transfer, demote, or dismiss an employee for failure to meet one or more requirements for continuing employment pursuant to the provisions of Government Code section 19585.

(y) “Office of the Chief Counsel” means the Office of the Chief Counsel for the Board.

(z) “Peremptory strike” means the disqualification without cause of an ALJ assigned to a hearing.

(aa) “Rejection during probationary period” or “rejection” means an action to remove an employee from a probationary appointment.

(bb) “Respondent” means the person or state agency from whose action or decision the appellant is seeking relief.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. Renumbering and amendment of former sections 52, 53 and 56 to section 51.1 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Registers 87, No. 48; and 86, No. 1.

2. Change without regulatory effect amending opening sentence and subsection (c) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

3. Renumbering of former section 51.2 to section 52.4 and renumbering and amendment of former section 51.1 to new section 51.2 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

4. Change without regulatory effect amending subsection (u) filed 10-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 41).

§51.3. Construction of Regulations.

Note • History

(a) As used in these regulations, words in the singular shall include the plural and words in the plural shall include the singular, unless the context otherwise requires.

(b) Statutory references are to the Government Code unless otherwise specified.

(c) In these regulations, whenever a time is stated within which an act is to be done, the time is computed by excluding the first day, and including the last day. If the last day is any day the board is closed for business, that day is also excluded.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. New section filed 4-26-90; operative 5-26-90 (Register 90, No. 22).

2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

3. Amendment of subsection (a), repealer of subsection (a)(1), subsection renumbering, amendment of newly designated subsection (a)(1) and new subsection (a)(3) filed 2-17-2009; operative 3-19-2009. Submitted to OAL for printing only pursuant to Government Code section 18211 (Register 2009, No. 8).

4. Repealer and new section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§51.4. Hearings are Public. [Renumbered]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. Renumbering and amendment of former section 73 to sections 51.4 and 51.5 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 85, No. 48.

2. Renumbering of former section 51.4 to new section 58.4 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§51.5. Right to Representation. [Renumbered]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. Renumbering and amendment of former section 73 to sections 51.4 and 51.5 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 85, No. 48.

2. Renumbering of former section 51.5 to new section 52.9 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§51.6. When Decisions Become Final.

Note • History

Unless a proper application for rehearing is made pursuant to Government Code section 19586, every board decision shall become final 30 days after service by the board of a copy of such decision upon the parties to the proceeding in which the decision is rendered.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19586, Government Code.

HISTORY

1. Renumbering and amendment of former section 70 to section 51.6 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 85, No. 48.

§51.7. Petitioning for Rehearing.

Note • History

Either the appellant or the respondent may file a petition for a rehearing of an appeal decision under the provisions of sections 19586 and 19587 of the Government Code.

Action on petitions for rehearing shall be taken within 60 days of the service specified in section 19586 of the Government Code.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19586 and 19587, Government Code.

HISTORY

1. Renumbering and amendment of former section 69 to section 51.7 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 85, No. 48.

§51.9. Request to File Charges Against State Employees. [Renumbered]

Note • History

NOTE

Authority: Section 18701, Government Code. Reference: Section 19583.5, Government Code.

HISTORY

1. Renumbering and amendment of former section 62 to section 51.9 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 85, No. 48.

2. Renumbering of former section 51.9 to new section 52.7 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§52. Appeals Assigned to the Administrative Law Judge Evidentiary/Investigatory Hearing Processes. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18671, 18675, 19570, 19756 and 19582, Government Code.

HISTORY

1. Renumbering and amendment of former section 52 to section 51.1, and renumbering and amendment of former section 67 to section 52 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 87, No. 48.

2. Change without regulatory effect amending subsection (b) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

3. Amendment of section heading, section and Note filed 8-19-97; operative 8-19-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 34).

4. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

5. Editorial correction implementing 8-18-2010 repeal (Register 2010, No. 37).

Article 2. Filing with SPB

§52.1. Papers; Type Size.

Note • History

(a) All papers filed with SPB must be on 8 1/2 by 11 inch paper, printed or typewritten or be prepared by a photocopying or other duplication process that produce clear and permanent copies equally as legible as printing.

(b) All typewritten papers filed with SPB must be printed in type not smaller than 12 point.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. Renumbering and amendment of former section 74 to section 52.1 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 87, No. 48.

2. New subarticle 2 (sections 52.1-52.10), renumbering of former section 52.1 to new section 58.5 and new section 52.1 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

3. Change without regulatory effect redesignating former subarticle 2 as new article 2 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).

§52.2. Changes in Mailing Address.

Note • History

All parties shall inform the Appeals Division of any change in their mailing address at the time of the change but not later than 1 week after the change.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. Renumbering and amendment of former section 66 to section 52.2 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 85, No. 48.

2. Renumbering of former section 52.2 to new section 58.3 and new section 52.2 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§52.3. Filing Notices of Adverse Action with SPB.

Note • History

Thirty (30) days after the effective date of this section, the Appointing Authority shall file Notices of Adverse Action with the Board utilizing the Board's on-line filing system.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. Renumbering and amendment of former section 61 to section 52.3 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 85, No. 48.

2. Amendment filed 3-19-91; operative 4-18-91 (Register 91, No. 14).

3. Change without regulatory effect amending subsection (a) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

4. Amendment of subsection (a) and amendment of Note filed 6-19-2001; operative 6-19-2001 pursuant to Government Code section 18214 (Register 2001, No. 25).

5. Renumbering of former section 52.3 to section 52.6 and new section 52.3 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§52.4. Requirements and Method of Delivery for Filing Appeals and Complaints with the SPB.

Note • History

Appeals filed with the SPB shall be subject to the following:

(a) All appeals and complaints shall be in writing.

(b) Except as otherwise provided in these Regulations, each appeal and complaint shall be filed with the Appeals Division and shall:

(1) Identify the name, address, and telephone number of the Appellant or Complainant;

(2) If different than the Appellant or Complainant, identify the name, address, and telephone number of the person filing the appeal or complaint, including the State Bar number if the person filing the appeal or complaint is an attorney.

(3) Except as provided in Government Code section 19575, state the facts that form the basis for appeal or complaint;

(4) Identify all Respondents known to the Appellant or Complainant including, for individually-named Respondents, first and last name, job title, and business address.

(c) Unless the appeal or complaint names some other Respondent, the Appellant's or Complainant's appointing power shall be considered the only Respondent.

(d) The Appeals Division shall mail or serve a copy of the appeal or complaint to or on the Respondent(s).

(e) Time Limitations for Filing Appeals or Complaints with the SPB

Except as otherwise provided in the act or these regulations, every appeal or complaint shall:

(1) be filed with the Appeals Division within the following time limits;

(A) Appeals from disciplinary action filed pursuant to the provisions of Government Code sections 19575, shall be filed within 30 days after the effective date of the notice of adverse action;

(B) Appeals from disciplinary action filed pursuant to the provisions of Education Code section 89539, subdivision (a), or Government Code section 19590, subdivision (c), shall be within 30 days of the employee's receipt of the notice of adverse action;

(C) Appeals from rejection during probationary period filed pursuant to the provisions of Government Code section 19175 shall be filed within 15 days of the effective date of the notice of rejection during probationary period;

(D) Appeals from non-punitive transfer, demotion or termination filed pursuant to the provisions of Government Code section 19585 shall be filed within 30 days after the effective date of the notice of non-punitive action;

(E) Appeals from medical transfer, demotion or termination filed pursuant to the provisions of Government Code section 19253.5, subdivision (f), shall be filed within 15 days of service of the notice of medical action;

(F) Appeals from Career Executive Assignment termination filed pursuant to the provisions of Government Code section 19889.2 shall be filed within 30 days of the employee's receipt of the notice of termination;

(G) Complaints of whistleblower retaliation filed pursuant to the provisions of Education Code section 87164 or Government Code sections 8547.8 and 19683, shall be filed within one year from the most recent act of reprisal complained about;

(H) Requests-to-File-Charges filed pursuant to the provisions of Government Code section 19583.5 shall be filed within one year of the event or events upon which the appeal is based;

(I) Appeals from constructive medical transfer, suspension, demotion, or termination shall be filed within 30 days of the employee being notified that he or she would not be permitted to resume the duties of their position;

(J) Appeals from the following types of cases shall be filed within 30 days of the effective date of the action:

(i) Termination of appointment from the Limited Examination and Appointment Program (LEAP); and

(ii) Termination or automatic resignation from a Permanent Intermittent appointment;

(K) Appeals from pre-employment medical disqualification, pre-employment psychological disqualification, and pre-employment drug test failure, shall be filed within 30 days of the date of service of the notice of disqualification;

(L) Appeals from improprieties in the civil service examination process shall be filed as follows:

(i) Appeals from qualification appraisal interviews shall be filed within 30 days of the date that examination results are mailed to the Appellant;

(ii) Appeals from written examinations shall be filed within 30 days of the date that examination results are mailed to the Appellant.

(M) Petitions to Set Aside Resignations pursuant to Education Code section 89542 shall be filed within 30 days after the last date upon which services to the state university or college are rendered, or the date the resignation is tendered, whichever is later;

(N) Appeals from Automatic Resignation for Absence Without Leave pursuant to Education Code section 89541 shall be filed within 90 days of the effective date of such separation. If the appointing authority has notified the employee of the automatic resignation, any request for reinstatement must be filed within 15 days of the service of notice of separation;

(O) Appeals from disciplinary action, rejection during probationary period, medical transfer or termination, automatic resignation, layoff, refusal to hire from a re-employment list, or grievance involving discrimination or political affiliation, filed pursuant to the provisions of Government Code section 19800 - 19810, pertaining to Local Agencies, shall be filed in accordance with the provisions of Title 2, Division 5, Chapter 2, Article 8, Subarticle 1, section 17550.

(P) Appeals from Withhold from Certification and Voided Appointment shall be filed within 30 days of the date that the Notice of Withhold from Certification or Notice of Voided Appointment is mailed to the Appellant.

(2) In all other cases, the appeal or complaint shall be filed within 30 days after the event upon which the appeal or complaint is based.

(3) Any Appellant or complainant seeking to file an appeal or complaint beyond the time limits in this section, must file a petition with the Chief ALJ or his or her designee demonstrating good cause as to why the appeal or complaint should be accepted. Upon good cause being shown, the Chief ALJ or his or her designee may allow an appeal or complaint, except as otherwise limited by statute, to be filed within 30 days after the end of the period in which the appeal or complaint should have been filed.

(f) Methods of Delivery for Filing Appeals or Complaints with the SPB

(1) Appeals or complaints delivered by electronic mail (e-mail), will be filed on the date received by SPB.

(2) Appeals or complaints delivered by the U.S. Postal Service are filed on the date received by the SPB. An Appellant or Complainant may obtain proof of the filing of the appeal or complaint by submitting either an extra copy of the appeal or complaint or the first page only, with a self-addressed, return envelope, postage prepaid. The Appeals Division shall return the copy marked with the date of filing.

(3) Appeals or complaints hand delivered to the SPB during regular business hours will be filed on the date received.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. New section filed 4-26-90; operative 5-26-90 (Register 90, No. 22).

2. Amendment of section and Note filed 4-1-2003; operative 4-1-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 14).

3. Repealer of former section 52.4 and renumbering of former section 51.2 to section 52.4, including amendment of section heading and section, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§52.5. Requirements and Method of Delivery for Filing All Other Papers with the Appeals Division.

Note • History

(a) After an appeal or complaint has been filed with the Appeals Division for review, investigation or hearing, all papers thereafter shall be filed with the Appeals Division, except as provided for in subdivision (b).

(b) The first page of each paper filed shall include the following:

(1) The name, address, and telephone number of the person filing the paper, including the State Bar number if the person filing the paper is an attorney;

(2) A caption setting forth the title of the case, including the names of the Appellant(s) and the Respondent(s);

(3) The SPB case number, if assigned;

(4) A brief title describing the paper filed; and

(5) The date(s) of the hearing and any future prehearing or settlement conferences, if known.

(1) All other papers delivered by electronic mail (e-mail), will be filed on the date received by SPB.

(2) All other papers delivered by the U.S. Postal Service are filed on the date received by the SPB. An Appellant or Complainant may obtain proof of the filing of the appeal or complaint by submitting either an extra copy of the appeal or complaint or the first page only, with a self-addressed, return envelope, postage prepaid. The Appeals Division shall return the copy marked with the date of filing.

(3) Appeals or complaints hand delivered to the SPB during regular business hours will be filed on the date received.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. New section filed 4-26-90; operative 5-26-90 (Register 90, No. 22).

2. Renumbering of former section 52.5 to new section 60.2 and new section 52.5 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§52.6. Right to Respond to Proposed Personnel Action.

Note • History

(a) At least five working days before the effective date of a proposed adverse action, rejection during the probationary period, or non-punitive termination, demotion, or transfer under Government Code section 19585, the appointing power, as defined in Government Code section 18524, or an authorized representative of the appointing power shall give the employee written notice of the proposed action. At least 15 calendar days before the effective date of a medical termination, demotion, or transfer under Government Code section 19253.5 or an application for disability retirement filed pursuant to Government Code section 19253.5(i)(1), the appointing power or an authorized representative of the appointing power shall give the employee written notice of the proposed action. The notice shall include:

(1) The reasons for such action;

(2) A copy of the charges for adverse action;

(3) A copy of all materials upon which the action is based;

(4) Notice of the employee's right to be represented in proceedings under this section;

(5) Notice of the employee's right to respond to the person specified in subsection (b); and

(6) A statement advising the employee of the time within which to file an appeal with the SPB.”

(b) The person whom the employee is to respond to in subsection (a)(5) shall be above the organizational level of the employee's supervisor who initiated the action unless that person is the employee's appointing power in which case the appointing power may respond to the employee or designate another person to respond.

NOTE

Authority cited: Sections 18701 and19574, Government Code. Reference: Sections 19173, 19253.5, 19574 and 19574.1, and 19585, Government Code and Skelly v. SPB (1975) 15 Cal. 3d 194.

HISTORY

1. New section filed 8-19-97; operative 8-19-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 34).

2. Renumbering of former section 52.6 to new section 55.2 and renumbering of former section 52.3 to section 52.6, including amendment of section heading and section, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§52.7. Request to File Charges Against State Employees.

Note • History

(a) Any request to file charges pursuant to Government Code section 19583.5, shall be filed by the requesting party with the Appeals Division of the SPB. The requesting party shall also serve the appropriate number of conforming copies on the appointing authority for each employee against whom disciplinary action is sought.

(b) Each request shall be in writing.

(c) Each request must clearly state the facts constituting the cause or causes for adverse action in such detail as is reasonably necessary to enable the accused employee to prepare a defense thereto. The accused employee has a right to provide an answer within 30 days of service of the request to file charges pursuant to Government Code section 19583.5.

(d) Each request must clearly state the legal cause(s) for discipline as set forth in Government Code section 19572.

(e) Each request shall include a sworn statement, signed under penalty of perjury, that the contents of the request are true and correct.

(f) Each request shall be limited to a maximum of 15 pages of double-spaced typed or printed text, not including exhibits. Additional pages may be allowed upon a showing of good cause. The requesting party shall submit a separate document with the request to file charges stating the reasons for good cause for the additional pages.

(g) Where it does not appear that the material facts alleged are within the personal knowledge of the requesting party, the Appeals Division may require the requesting party to present supporting affidavits from persons having actual knowledge of the facts before acting upon the request.

(h) Only after compliance with subdivisions (a) through (g) will the Appeals Division conduct an investigative review to determine whether the Board will give its consent to file charges.

(i) If the Board approves the request after an investigative review, the parties will be notified that the request has been approved and that the matter will be scheduled for an evidentiary hearing before an ALJ. The Appeals Division will notify the parties of the time and location of the hearing.

(1) The hearing shall be conducted in accordance with those regulations related to the adverse action hearing process pursuant to Sub-Article 6, beginning with section 56.1. During the hearing, the requesting party shall bear the burden of proving the allegations contained in the request by a preponderance of the evidence.

(2) No disciplinary action shall be imposed on the employee until after the completion of the hearing, and only upon a finding by the Board that disciplinary action is warranted against the employee.

(3) In those instances where the Board finds that disciplinary action is warranted against the employee, the Board shall notify the employee's appointing authority of the disciplinary action to be imposed on the employee. The appointing authority shall thereafter cause the disciplinary action mandated by the Board to be implemented against the employee within a reasonable period of time, not to exceed two weeks. The employee shall not be entitled to a right to respond pursuant to section 52.6. Within 30 days after a copy of the Board's decision is served upon the parties, either party may petition the Board for rehearing of the decision, pursuant to Government Code section 19586.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19583.5, Government Code.

HISTORY

1. Renumbering and amendment of former section 51.9 to new section 52.7 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§52.8. Pleadings; Notice of Defense; Withdrawal of Notice of Defense.

Note • History

(a) When a party amends a pleading, including a Notice of Adverse Action amended in accordance with the provisions of Government Code section 19575.5, the party shall serve on all other parties and promptly file with the Appeals Division a complete, new pleading incorporating the amendments. The new pleading shall be titled a “First Amended” pleading, and subsequent amended pleadings shall be titled consecutively. If the amendments are made during the hearing, the party shall use highlighting or any other effective method to identify the changes made to the pleading. The ALJ, or the Hearing Officer, may allow exceptions for minor amendments during the hearing.

(b) The SPB prefers amended to supplemental pleadings. However, if a party issues a supplemental pleading, the party shall serve on all other parties and promptly file with the Appeals Division the supplemental pleading, which shall be titled a “First Supplemental” pleading. Subsequent supplemental pleadings shall be titled consecutively.

(c) A party who withdraws a notice of defense, a request for hearing, or an asserted special defense, shall immediately notify the Appeals Division and all other parties in writing.

(d) When an Appellant or Complainant withdraws a request for hearing, the appeal or complaint will be deemed to be dismissed.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§52.9. Right to Representation; Notice of Representation and Withdrawal of Counsel or Other Representative.

Note • History

(a) Any party may be represented by counsel or any other person or organization of the party's choice in any hearing or investigation conducted pursuant to this article.

(b) Any counsel or other representative who has assumed representation of a party in any case submitted for hearing before the SPB shall give written notice to the Appeals Division if no presiding officer has been assigned, and written notice to all parties of his or her name, address, telephone number and fax number (if any) and the name of the represented party, within a reasonable time after assuming representation.

(c) Any counsel or other representative may withdraw as counsel or representative of record by giving written notice to the Appeals Division if no presiding officer has been assigned, and written notice to all parties of the withdrawal. The written notice shall include the last known address of the formerly represented party.

(d) Upon withdrawal by counsel or other representative:

(1) The SPB retains jurisdiction over the case;

(2) The formerly represented party bears the burden of keeping the SPB and all parties informed of a current address for purposes of service. If written notice of change of address is not given, any party may serve the formerly represented party at the party's last known address; and

(3) The formerly represented party is responsible for preparation and representation throughout the remainder of the case, unless and until such party retains new counsel or other representative.

(e) Withdrawal or change of counsel or other representative does not alone constitute grounds for continuance of any previously scheduled proceeding in the case.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. Renumbering and amendment of former section 51.5 to new section 52.9 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§52.10. Service; Proof of Service.

Note • History

(a) Service of subpoenas and subpoena duces tecum shall be made by personal service, or by United States mail with postage fully prepaid, certified with return receipt requested.

(b) Service of all other documents shall be made pursuant to sections 1012, 1013, and 1013a of the Code of Civil Procedure.

NOTE

Authority cited: Sections 18211, 18214 and 18701, Government Code. Reference: Sections 415.30, 1008, 1012 and 1013, Code of Civil Procedure; Sections 89538 and 89541, Education Code; Sections 11440.20(b), 18575, 18672, 19058, 19083, 19100.5, 19173, 19243.4, 19253.5, 19574, 19585, 19590, 19803 and 19889.2, Government Code.

HISTORY

1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§53. Appeals Assigned to General Merit System Appeals Process. [Repealed]

Note • History

NOTE

Authority: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. Renumbering and amendment of former section 53 to sections 51.1 and 53 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 87, No. 48.

2. Change without regulatory effect amending subsection (a) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

3. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

Article 3. Assignment of Appeals or Complaints

§53.1. Appeals or Complaints Assigned to Informal Hearing Process.

Note • History

(a) Unless otherwise assigned, the following matters will be assigned to the informal hearing process:

(1) Appeals from psychological and medical disqualification.

(2) Appeals from voided civil service appointments.

(3) Appeals from denial to take state civil service examination or be certified to any position in state civil service, pursuant to section 211.

(4) Whistleblower retaliation complaints not consolidated with other appeals assigned to the evidentiary hearing process.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. New section filed 4-26-90; operative 5-26-90 (Register 90, No. 22).

2. Change without regulatory effect amending subsection (a) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

3. New subarticle 3 (sections 53.1-53.4), renumbering of former section 53.1 to new section 66.1 and new section 53.1 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

4. Change without regulatory effect redesignating former subarticle 3 as new article 3 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).

§53.2. Appeals or Complaints Assigned to Investigative Process.

Note • History

(a) Unless otherwise assigned, the following matters will be assigned to the investigative review process:

(1) Complaints of discrimination, harassment, retaliation, or denial of reasonable accommodation for a known physical or mental disability, challenges to examination results, rejection of application for state civil service employment based upon minimum qualifications, certification withholds, and merit issue complaints.

(b) Unless otherwise required by law, or otherwise assigned, appeals of an adverse action where the penalty imposed is an official reprimand or other penalty equal to or less than a suspension without pay for five days or equal to or less than a one-step reduction in pay for four months will be assigned to the investigatory hearing process.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. New section filed 4-26-90; operative 5-26-90 (Register 90, No. 22).

2. Repealer and new section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§53.3. Appeals or Complaints Assigned to the Evidentiary Hearing Process.

Note • History

(a) Unless otherwise required by law, or otherwise assigned, the following shall be assigned to the full evidentiary hearing process:

(1) Approved requests to file charges pursuant to Government Code section 19583.5.

(2) Appeal of an adverse action pursuant to Government Code section 19575 or 19590 where the penalty imposed is greater than a suspension without pay for five days or a one-step reduction in pay for four months.

(3) Appeal of rejection during probationary period.

(4) Any other appeal or complaint deemed appropriate by the Chief ALJ, Executive Officer, the Board, or its President.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§53.4. Reassignment of Appeals.

Note • History

Except as otherwise provided by law, the Board, the Executive Officer, or the Chief ALJ may reassign an appeal to any process.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§54. Discrimination Complaint Process. [Repealed]

Note • History

NOTE

Authority: Section 18701, Government Code. Reference: Section 19700, 19701, 19702, 19702.1, 19702.2, 19702.5, 19703, 19704 and 19705, Government Code.

HISTORY

1. Repealer and section filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 87, No. 48.

2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

3. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

Article 4. Informal Hearing Process

§54.1. Informal Hearing Process.

Note • History

(a) For those appeals assigned to hearing before a Hearing Officer, the Hearing Officer shall have the authority to administer oaths, subpoena and require the attendance of witnesses and the production of books or papers. The Hearing Officer shall have the sole discretion to determine whether the parties to the hearing shall have the authority to call and examine witnesses. The Hearing Officer shall have the authority to take official notice of those matters specified in Government Code section 11515, in accordance with the provisions of that section.

(b) Failure of any party to proceed at hearings presided over by a Hearing Officer shall be deemed a withdrawal of the action or appeal unless the hearing is continued for good cause.

(c) The provisions of section 59.1 through 59.4 shall apply to hearings conducted by Hearing Officers except that all motions or petitions filed with the Appeals Division pursuant to those regulations shall be directed to the attention of the Chief ALJ and not the Hearing Officer.

(d) The hearing shall be calendared for no more than 2 hours, except for Whistleblower Retaliation hearings which will be calendared for no more than 4 hours.

(e) The Hearing Officer has discretion to ask clarifying questions of the witnesses or the parties either during or at the conclusion of each party's case-in-chief and has sole discretion to extend additional time to each of the parties.

(f) The Hearing Officer is not bound by common law/statutory rules of evidence or by technical or formal rules of procedure, except as set forth herein, but shall conduct the hearing in such a manner as necessary to reach a just and proper decision. Relevant evidence will be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.

(g) Declarations/affidavits made under penalty of perjury will be admissible even though they are technically hearsay, and may be relied upon by the Hearing Officer to make a finding of fact.

(h) The Hearing Officer shall prepare a proposed decision which will be forwarded to the Board.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18675 and 19570, Government Code.

HISTORY

1. New subarticle 4 (section 54.1) and section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

2. Change without regulatory effect redesignating former subarticle 4 as new article 4 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).

§54.2. Discrimination Complaint Standards for Appointing Powers. [Repealed]

Note • History

NOTE

Authority: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. Renumbering and amendment of former section 547.2 to section 54.2 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 86, No. 28.

2. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§55. Hearing Officer. [Repealed]

History

HISTORY

1. Repealer filed 4-26-90; operative 5-26-90 (Register 90, No. 22).

Article 5. Investigative Process

§55.1. Investigative Review.

Note • History

(a) For those appeals assigned to review by an Investigative Officer pursuant to section 53.2, the Investigative Officer shall have the authority to interview witnesses, administer oaths, subpoena and require the attendance of witnesses and the production of books or papers. The Investigating Officer shall also have the authority to take official notice of those matters specified in section 11515 of the Government Code.

(b) No hearing shall be conducted concerning those appeals assigned to investigative review. No party to the appeal shall be authorized to conduct discovery concerning those issues subject to investigative review. No party to the appeal shall be authorized to call and examine witnesses as part of the investigative review. The investigative review shall be based upon any documentary or other information deemed relevant by the Investigative Officer.

(c) The Investigative Officer is not bound by common law/statutory rules of evidence or by technical or formal rules of procedure, except as set forth herein, but shall conduct the investigatory review in such a manner as necessary to reach a just and proper decision. Relevant evidence will be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.

(d) Declarations/affidavits made under penalty of perjury will be admissible even though they are technically hearsay, and may be relied upon by the Investigative Officer to make a finding of fact.

(e) Upon conclusion of the Investigatory Review, the Executive Officer, or his or her designee shall either:

(1) Present a recommended decision to the Board, or

(2) Render a decision.

NOTE

Authority cited: 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. New subarticle 5 (sections 55.1-55.2) and section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

2. Change without regulatory effect redesignating former subarticle 5 as new article 5 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).

§55.2. Investigatory Hearings.

Note • History

(a) Failure of any party to proceed at the investigatory hearing shall be deemed a withdrawal of the action or appeal, unless the investigatory hearing is continued for good cause.

(b) The investigatory hearing shall be calendared for no more than 6 hours. Each party will be allotted a total of 3 hours to be allocated at that party's discretion for presentation of its case, including examination and cross-examination of witnesses, presentation of declarations, documentary evidence, and exhibits, and presentation of arguments. While use of the time allotted is at each party's discretion, the suggested format for the hearing is as follows: 10 minutes each for opening statements, 120 minutes each to call witnesses and present declarations, documentary evidence and exhibits, 30 minutes each for cross-examination of the opposing party's witnesses, and 20 minutes each for closing arguments. The ALJ is authorized to conduct a full evidentiary hearing in an appeal defined in this regulation upon mutual agreement of the parties or, upon motion by one of the parties, if the ALJ finds it in the interest of justice to do so.

(c) The ALJ has discretion to ask clarifying questions of the witnesses or the parties either during or at the conclusion of each party's case-in-chief and has sole discretion to extend additional time to each of the parties.

(d) The ALJ is not bound by common law/statutory rules of evidence or by technical or formal rules of procedure, except as set forth herein, but shall conduct the investigatory hearing in such a manner as necessary to reach a just and proper decision. Relevant evidence will be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.

(e) Declarations/affidavits made under penalty of perjury will be admissible even though they are technically hearsay, and may be relied upon by the ALJ to make a finding of fact pursuant to section 11514 of the Government Code.

(f) The ALJ shall prepare a short-form proposed decision which would be forwarded to the Board within 30 days of the investigatory hearing. The decision will include enough information to allow the Board to exercise its constitutional authority to review disciplinary actions, such as (1) introduction; (2) factual allegations sustained and not sustained, referring to the Notice of Adverse Action; (3) legal causes, sustained and not sustained, referring to the Notice of Adverse Action and any other applicable legal authority; (4) penalty including brief references to any applicable legal authority; and (5) any finding of fact that the ALJ decides is necessary to highlight.

(g) Absent Board rejection of the proposed decision, each case should be opened and closed in no more than 180 days.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18675, 19570 and 19576, Government Code.

HISTORY

1. Renumbering of former section 52.6 to new section 55.2, including amendment of section heading, section and Note, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§56. Whistleblower Retaliation Complaint Process. [Renumbered]

Note • History

NOTE

Authority cited: Sections 18701 and 18214, Government Code. Reference: Sections 87162 and 87164, Education Code; and Sections 8547.2, 8547.8 and 19683, Government Code.

HISTORY

1. New section filed 8-14-2002; operative 8-14-2002 pursuant to Government Code section 18214 (Register 2002, No. 33). For prior history see Register 90, No. 22.

2. Amendment of section and Note filed 3-8-2006; operative 3-8-2006. Exempt from the Administrative Procedure Act pursuant to section 18211 of the Government Code and submitted to the Office of Administrative Law for filing with the Secretary of State and publication in the California Code of Regulations pursuant to section 18214 of the Government Code (Register 2006, No. 10).

3. Renumbering and amendment of former section 56 to new section 67.1 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

Article 6. Evidentiary Hearing Process

Subarticle 1. Administrative Law Judges

§56.1. Authority of ALJ.

Note • History

When an ALJ has been assigned to evidentiary or investigatory hearing matters, an ALJ is fully authorized and empowered to control the litigation before them and may grant or refuse extensions of time, receive evidence, hold appropriate conferences before or during hearings, rule upon all objections or motions, hear argument, and fix the time for the filing of briefs. An ALJ is fully authorized and empowered to perform any and all other acts in connection with such proceedings that may be authorized by law or these regulations, including those acts necessary to ensure due process for all parties, and has wide latitude as to all phases of the conduct of the hearing, including the manner in which the hearing will proceed.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code; Mileikowsky v Tenent Healthsystem (2005) 128 Cal.App.4th 531, 560.

HISTORY

1. New section filed 8-14-2002; operative 8-14-2002 pursuant to Government Code section 18214 (Register 2002, No. 33).

2. Amendment of section heading, section and Note filed 3-8-2006; operative 3-8-2006. Exempt from the Administrative Procedure Act pursuant to section 18211 of the Government Code and submitted to the Office of Administrative Law for filing with the Secretary of State and publication in the California Code of Regulations pursuant to section 18214 of the Government Code (Register 2006, No. 10).

3. New subarticle 6 (chapters 1-5, sections 56.1-60.3) and chapter 1 (sections 56.1-56.4), renumbering of former section 56.1 to new section 67.2 and new section 56.1 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

4. Change without regulatory effect redesignating former subarticle 6 as new article 6 and redesignating former chapter 1 as new subarticle 1 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).

§56.2. Peremptory Strike.

Note • History

(a) A party is entitled to one peremptory strike (disqualification without cause) of an ALJ assigned to a hearing. In no event shall a peremptory strike be allowed if it is made after the hearing has commenced.

(b) A peremptory strike shall be:

(1) Filed with the Appeals Division and directed to the Chief ALJ within 20 days of the date that the Appeals Division mails a letter of acknowledgement of the filing of the matter together with a list of the available ALJ's to all the parties;

(2) Filed by a party, or a party's attorney or authorized representative; and

(3) Made in writing in substantially the following form:

“I am a party to [CASE NAME AND NUMBER] and am exercising my right to a peremptory strike regarding ALJ [NAME], pursuant to section 56.2.”

(d) Nothing in this regulation shall affect or limit the provisions of a challenge for cause under section 56.3, or any other applicable provisions of law.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. New section filed 8-14-2002; operative 8-14-2002 pursuant to Government Code section 18214 (Register 2002, No. 33).

3. Renumbering of former section 56.2 to new section 67.3 and new section 56.2 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§56.3. Disqualification of ALJ, Hearing Officer, or Board Member for Cause.

Note • History

(a) An ALJ or Hearing Officer shall voluntarily disqualify him or herself and withdraw from any case in which there are grounds for disqualification, including disqualification under section 11425.40 of the Government Code. The parties may waive the disqualification by a writing that recites the grounds for disqualification. A waiver is effective only when signed by all parties, accepted by the ALJ, and included in the record.

(b) In accordance with the provisions of section 11425.40 of the Government Code, any party may request the disqualification of any ALJ or Hearing Officer by filing an affidavit, prior to the taking of evidence at a hearing, stating with particularity the grounds upon which it is claimed that the ALJ or Hearing Officer should be disqualified. The issue shall be determined by the ALJ or Hearing Officer.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18675, 11425.40, 11430.60 and 11512(c), Government Code.

HISTORY

1. New section filed 8-14-2002; operative 8-14-2002 pursuant to Government Code section 18214 (Register 2002, No. 33).

2. Amendment of section heading, repealer and new section and amendment of Note filed 3-8-2006; operative 3-8-2006. Exempt from the Administrative Procedure Act pursuant to section 18211 of the Government Code and submitted to the Office of Administrative Law for filing with the Secretary of State and publication in the California Code of Regulations pursuant to section 18214 of the Government Code (Register 2006, No. 10).

3. Renumbering of former section 56.3 to new section 67.4 and new section 56.3 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§56.4. Ex Parte Communications.

Note • History

(a) While any proceeding is pending before the Board, an ALJ, a Hearing Officer, an Investigative Officer, or any other designated representative of the Board, there shall be no communication, direct or indirect, regarding any issue in the proceeding, to the presiding officer from any party, party representative, or interested third party, without notice and opportunity for all parties to participate in the communication.

(1) Nothing in this section precludes a communication made on the record at the hearing.

(2) For the purpose of this section, a proceeding is pending from the submission of an appeal to the Appeals Division.

(b) A communication otherwise prohibited under subdivision (a) is permissible in any of the following circumstances:

(1) The communication is required for disposition of an ex parte matter specifically authorized by statute; or

(2) The communication concerns a matter of procedure or practice.

(c) If, while the proceeding is pending, but before serving as the presiding officer, a person receives a communication of a type that would be in violation of this section if received while serving as the presiding officer, the person promptly after starting to serve, shall disclose the content of the communication on the record and give all parties an opportunity to address it in the manner provided in subdivision (d).

(d) If a presiding officer receives a communication in violation of this section,

(1) the presiding officer shall make all of the following a part of the record in the proceedings:

(A) If the communication is written, the writing and any written response of the presiding officer to the communication; or

(B) If the communication is oral, a memorandum stating the substance of the communication, any response made by the presiding officer, and the identity of each person from whom the presiding officer received the communication.

(2) The presiding officer shall notify all parties that a communication described in this section has been made a part of the record.

(3) If a party requests an opportunity to address the communication within 10 days after receipt of notice of the communication:

(A) The party shall be allowed to comment on the communication. The presiding officer shall have the discretion to permit either written or oral comment; and

(B) The presiding officer has the discretion to allow the party to present evidence concerning the subject of the communication, including discretion to reopen a hearing that has been concluded.

(e) Receipt by the presiding officer, other than the Board, of a communication in violation of this article may be grounds for disqualification of the presiding officer. If the presiding officer is disqualified, the portion of the record pertaining to the ex parte communication may be sealed by protective order of the disqualified presiding officer.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18675, 11430.10, 11430.20, 11430.30, 11430.40, 11430.50 and 11430.60, Government Code.

HISTORY

1. New section filed 8-14-2002; operative 8-14-2002 pursuant to Government Code section 18214 (Register 2002, No. 33).

3. Renumbering of former section 56.4 to new section 67.5 and new section 56.4 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§56.5. Findings of the Executive Officer. [Renumbered]

Note • History

NOTE

Authority cited: Sections 18701 and 18214, Government Code. Reference: Section 87164, Education Code; Sections 8547.8, 18670, 18671.1, 18675, 19572, 19574, 19575, 19582, 19590 and 19683, Government Code; and Section 6129, Penal Code.

HISTORY

1. New section filed 8-14-2002; operative 8-14-2002 pursuant to Government Code section 18214 (Register 2002, No. 33).

3. Renumbering and amendment of former section 56.5 to new section 67.6 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§56.6. Disciplinary Action for Proven Retaliatory Acts. [Renumbered]

Note • History

NOTE

Authority cited: Sections 18701 and 18214, Government Code. Reference: Section 87164, Education Code; Sections 8547.8, 18670, 18671, 18675, 18710, 19572, 19574, 19582, 19583.5, 19590, 19592 and 19683, Government Code; and Section 6129, Penal Code.

HISTORY

1. New section filed 8-14-2002; operative 8-14-2002 pursuant to Government Code section 18214 (Register 2002, No. 33).

3. Renumbering of former section 56.6 to new section 67.7 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§56.7. Consolidation with Other Hearings. [Renumbered]

Note • History

NOTE

Authority cited: Sections 18701 and 18214, Government Code. Reference: Sections 8547.8, 11513, 18670, 18671, 18672, 18675, 19175, 19253.5, 19575, 19582, 19585, 19590 and 19683, Government Code.

HISTORY

1. New section filed 8-14-2002; operative 8-14-2002 pursuant to Government Code section 18214 (Register 2002, No. 33).

3. Renumbering of former section 56.7 to new section 67.8 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§56.8. Evidentiary Hearing Procedures and Representation by the Executive Officer. [Repealed]

Note • History

NOTE

Authority cited: Sections 18701 and 18214, Government Code. Reference: Section 87164, Education Code; Sections 8547.8, 18670, 18671, 18675, 19572, 19574, 19575, 19590 and 19683, Government Code; and Section 6129, Penal Code.

HISTORY

1. New section filed 8-14-2002; operative 8-14-2002 pursuant to Government Code section 18214 (Register 2002, No. 33).

2. Repealer and new section filed 3-8-2006; operative 3-8-2006. Exempt from the Administrative Procedure Act pursuant to section 18211 of the Government Code and submitted to the Office of Administrative Law for filing with the Secretary of State and publication in the California Code of Regulations pursuant to section 18214 of the Government Code (Register 2006, No. 10).

3. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

Subarticle 2. Prehearing Provisions

§57.1. Prehearing/Settlement Conferences.

Note • History

(a) After a case has been filed with the Appeals Division, the matter shall be scheduled for a prehearing/settlement conference, unless ordered otherwise.

(b) The ALJ at the prehearing/settlement conference shall not preside as the ALJ at the evidentiary hearing unless otherwise stipulated by the parties.

(c) Each Appellant and his or her representative, and each Respondent and his or her representative, shall appear in person at all prehearing/settlement conferences. Individually named Appellants and Respondents must also personally appear at all prehearing/settlement conferences.

(d) Each party or representative who attends the prehearing/settlement conference shall be fully familiar with the facts and issues in the case. Respondents or their representatives must have full settlement authority, or be able to obtain authority immediately by telephone.

(e) A request to continue a prehearing/settlement conference shall be addressed to the Chief ALJ pursuant to section 60.2.

(f) Each party shall file a written prehearing/settlement conference statement with the Appeals Division 10 calendar days prior to the hearing, that contains the following information:

(1) The identification by SPB Case Number of all appeals or complaints pending before the Appeals Division or the Board, arising out of the same transaction, occurrence, or series of transactions or occurrences.

(2) A brief summary of any stipulated facts.

(3) Identification of affirmative defenses to any claim.

(4) A current estimate of the time necessary to try the case.

(5) The identity of witnesses each party may call at the hearing, together with a brief statement of the content of each witness's expected testimony. Parties are not required to disclose any witness that will be called for rebuttal or impeachment purposes.

(6) The identity of any witness who may be called to testify who is an inmate of any correctional facility. In addition, at the discretion of the Chief ALJ, such individuals may be required to testify via closed circuit television, or by other electronic means.

(7) The name and address of each expert witness each party intends to call at the hearing, together with a brief statement of the opinion each expert is expected to give, and a copy of the current resume or curriculum vitae of each expert witness.

(8) A list of documentary exhibits each party intends to present at the hearing, and a description of any physical or demonstrative evidence. Parties are not required to disclose exhibits that will be used for rebuttal or impeachment purposes.

(9) A concise statement of any significant evidentiary issues to assist the ALJ in conducting the hearing.

(10) Failure to fully disclose all required items in the prehearing/settlement conference statement without good cause will, at the discretion of the ALJ, result in the exclusion or restriction of evidence at the hearing.

(g) All prehearing/settlement conference statements shall be served on all other parties 10 calendar days prior to the hearing, and shall be filed with the assigned ALJ at the pre hearing/ settlement conference.

(h) Each party shall bring a copy of the prehearing/settlement conference statement as well as a draft of any settlement proposal on a portable drive or in writing to the prehearing/settlement conference.

(i) Where a case cannot be settled at the prehearing/settlement conference, the ALJ may address such issues as:

(1) Discovery disputes;

(2) Preparation of stipulations;

(3) Clarification of Issues;

(4) Rulings on identity and limitation of the number of witnesses;

(5) Objections to proffers of evidence;

(6) Order of presentation of evidence and cross-examination;

(7) Rulings regarding issuance of subpoenas and protective orders; and

(8) Any other matters that promote the orderly and prompt conduct of the hearing.

(j) Failure of any party to appear and/or proceed at a prehearing/settlement conference shall be deemed a withdrawal of the appeal or the action, unless the hearing is continued for good cause pursuant to section 58.3.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18675, 11511.5 and 11511.7, Government Code.

HISTORY

1. New section filed 8-12-2002; operative 8-12-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 33).

2. Change without regulatory effect amending section filed 11-26-2002 pursuant to section 100, title 1, California Code of Regulations (Register 2002, No. 48).

3. Amendment of section heading, repealer and new section and amendment of Note filed 2-28-2006; operative 2-28-2006. Exempt from the Administrative Procedure Act pursuant to section 18211 of the Government Code and submitted to the Office of Administrative Law for filing with the Secretary of State and publication in the California Code of Regulations pursuant to section 18214 of the Government Code (Register 2006, No. 9).

4. New chapter 2 (sections 57.1-57.2) and repealer and new section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

5. Change without regulatory effect redesignating former chapter 2 as new subarticle 2 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).

§57.2. Consolidated Proceedings; Separate Proceedings.

Note • History

(a) When proceedings that involve a common question of law or fact are pending, the Chief ALJ or his designee on the judge's own motion, or on the motion of a party, may order a joint hearing of any or all matters at issue in the proceedings. The Chief ALJ or his designee may order all the proceedings consolidated and may make orders concerning the procedure that may tend to avoid unnecessary costs or delay.

(b) A party who brings a motion for consolidated proceedings or separate proceedings shall comply with section 60.1.

(c) Where a motion for consolidated proceedings or separate proceedings is made on the day of the hearing, the moving party must demonstrate that the issues were not discoverable at an earlier time.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. New section filed 8-12-2002; operative 8-12-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 33).

2. Amendment of section and Note filed 2-28-2006; operative 2-28-2006. Exempt from the Administrative Procedure Act pursuant to section 18211 of the Government Code and submitted to the Office of Administrative Law for filing with the Secretary of State and publication in the California Code of Regulations pursuant to section 18214 of the Government Code (Register 2006, No. 9).

3. Renumbering of former section 57.2 to new section 59.1 and new section 57.2 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§57.3. Petition to Compel Discovery. [Renumbered]

Note • History

NOTE

Authority cited: Sections 18701 and 18214, Government Code. Reference: Section 87164, Education Code; Section 915, Evidence Code; and Sections 8547.8, 18670, 18671, 18672, 18672.1, 18673, 18675, 19683 and 19700-19706, Government Code.

HISTORY

1. New section filed 8-12-2002; operative 8-12-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 33).

3. Renumbering of former section 57.3 to new section 60.3 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§57.4. Petition to Quash or for Protective Order. [Repealed]

Note • History

NOTE

HISTORY

1. New section filed 8-12-2002; operative 8-12-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 33).

3. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

Subarticle 3. Hearings

§58.1. Waiver of Government Code Section 18671.1.

Note • History

(a) For any appeal pending before the Appeals Division, if the Appellant does not affirmatively waive the provisions of section 18671.1 of the Government Code, then the Appeals Division has the discretion to either set the matter for hearing at any location the Board determines will be able to hold the hearing in the most expeditious manner possible, or require the hearing to be held by telephonic conference call, or video conferencing pursuant to section 58.6.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18701, 18671.1 and 18675, Government Code.

HISTORY

1. New chapter 3 (sections 58.1-58.11) and section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

2. Change without regulatory effect redesignating former chapter 3 as new subarticle 3 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).

§58.2. Requests for Priority Hearing in Appeals and Complaints from Dismissal.

Note • History

(a) For appeals and complaints involving the penalty of dismissal, where an evidentiary hearing has not commenced within 8 months of the filing of the appeal or complaint, an Appellant or Complainant may request a priority hearing with the Appeals Division. Requests for priority hearing shall be in writing, and shall be filed with the Appeals Division, with copies sent to all other parties.

(b) Upon a request for a priority hearing as provided in subdivision (a), the evidentiary hearing shall be scheduled to occur within 90 days of the request at an SPB hearing location designated by the Chief ALJ or his or her designee, and may where practicable, utilize an electronic proceeding as set forth in section 58.6, for all or part of the hearing.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§58.3. Dismissal of Appeals Not Brought to Hearing and Failure to Proceed.

Note • History

(a) Any appeal assigned to the ALJ, hearing officer, Chief ALJ's designee, or presiding officer, shall be dismissed unless it is brought to hearing within three years after such appeal was filed with the Board. “Brought to hearing” means when the record is opened for the purpose of initiating the evidentiary hearing pursuant to section 51.2(i).

(b) Failure of any party to proceed at a hearing or a prehearing/settlement conference, shall be deemed a withdrawal of the appeal or the action, unless the hearing is continued for good cause.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675(a), Government Code.

HISTORY

1. Renumbering of former section 52.2 to new section 58.3, including amendment of section heading and section, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§58.4. Hearings are Public.

Note • History

Every appeal hearing, including the hearing of an adverse action appeal, shall be public, unless otherwise required by law to be closed to the public.

(a) A hearing shall be open to public observation. Nothing in this subdivision limits the authority of the presiding officer to order on the record, closure of a hearing or make other protective orders to the extent necessary or proper for any of the following purposes:

(1) To satisfy the United States Constitution, the California Constitution, federal or state statute, or other law, including but not limited to laws protecting privileged, confidential, or other protected information.

(2) To ensure a fair hearing in the circumstances of the particular case.

(3) To conduct the hearing, including the manner of examining witnesses, in a way that is appropriate to protect a minor witness or a witness with a developmental disability, as defined in section 4512 of the Welfare and Institutions Code, from intimidation or other harm, taking into account the rights of all persons.

(b) To the extent a hearing is conducted by telephone, television, or other electronic means, subdivision (a) is satisfied if members of the public have an opportunity to be physically present at the place where the presiding officer is conducting the hearing.

(c) This section does not apply to a prehearing conference or settlement conference, or proceedings for alternative dispute resolution.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. Renumbering and amendment of former section 51.4 to new section 58.4 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§58.5. Exclusion of Witnesses.

Note • History

Upon the motion of any party, the ALJ, hearing officer, Chief ALJ's designee, or presiding officer shall have the authority to exclude from the hearing room any witnesses not at the time under examination; but a party to the proceeding, or the party's counsel or other person representing a party, shall not be excluded. When a state agency is a party it is entitled to the presence of one other officer or employee in addition to its counsel or representative.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. Renumbering and amendment of former section 52.1 to new section 58.5 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§58.6. Electronic Proceedings.

Note • History

(a) The presiding ALJ may, upon the motion of a party or upon the presiding ALJ's own motion, conduct all or part of a hearing by telephonic conference call or video conference if each participant in the proceeding has an opportunity to participate in and hear the entire proceeding while it is taking place and to observe exhibits.

(b) If a party objects, the presiding ALJ may proceed upon a finding that no party to the proceeding will be prejudiced by all or part of the hearing being conducted by telephone or other electronic means.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§58.7. Request for Security.

Note • History

(a) Any party or participant in an evidentiary hearing may request security for the hearing. The request shall be made as soon as the need for security is known. The request shall be filed with the Appeals Division and directed to the Chief ALJ or the assigned ALJ. To ensure that appropriate safety measures are arranged, the person requesting security shall inform the Chief ALJ, or the assigned ALJ, the nature of the security risk.

(b) The Chief ALJ, or his or her designee will evaluate the request for security and make the decision whether to provide security. Costs for security are reimbursed pursuant to Government Code section 18671.2.

(c) If the request for security is made without sufficient time for appropriate security personnel to be procured, the Chief ALJ, or the assigned ALJ, has the discretion to continue the proceeding.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§58.8. Accommodation for Persons with Disabilities.

Note • History

In proceedings where an Applicant has a disability requiring accommodation either at the hearing or at any other stage of any administrative adjudication at the State Personnel Board (SPB), the Applicant shall be responsible for requesting accommodations.

(a) “Persons with disabilities” means individuals covered by California Civil Code section 51 et seq.; the Americans With Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.); or other applicable state and federal laws. This definition includes persons who have a physical or mental impairment that limits one or more of the major life activities, have a record of such impairment, or are regarded as having such an impairment.

(b) “Applicant” means any lawyer, party, witness, or other person with an interest in attending any proceeding before the SPB.

(c) “Accommodations” means actions that result in services, programs, or activities being readily accessible to and usable by persons with disabilities. Accommodations may include making reasonable modifications in policies, practices, and procedures; furnishing, at no charge, to persons with disabilities, auxiliary aids and services, equipment devices, materials in alternative formats, readers, or certified interpreters for persons with hearing impairments; relocating services or programs to accessible facilities; or providing services at alternative sites. Although not required where other actions are effective in providing access to SPB services, programs, or activities, alteration of existing facilities by the SPB may be an accommodation.

(d) Process for Requesting Accommodations

The process for requesting accommodations is as follows:

(1) Requests for accommodations may be presented ex parte on a form provided by SPB, in another written format, or orally. Requests must be forwarded to the SPB Appeals Division to the attention of the Presiding Administrative Law Judge.

(2) Requests for accommodation must include the name of the Appeal and SPB's case number, along with a description of the accommodation sought, along with a statement of the impairment that necessitates the accommodation. The SPB, in its discretion, may require the applicant to provide additional information about the impairment.

(3) Requests for accommodation must be made as far in advance as possible, and in any event must be made no fewer that 30 days before the requested implementation date. The SPB may waive this requirement for good cause.

(4) The SPB will keep confidential all information of the Applicant concerning the request for accommodation, unless confidentiality is waived in writing by the applicant or disclosure is required by law. The Applicant's identity and confidential information will not be disclosed to the public or to persons other than those involved in the accommodation process. Confidential information includes all medical information pertaining to the Applicant, and all oral or written communication from the Applicant concerning the request for accommodation.

(5) Permitted communication under this rule must address only the accommodation requested by the applicant and must not address, in any manner, the subject matter or merits of the proceedings before SPB.

(e) Response to Accommodation Request

The SPB will respond to a request for accommodation as follows:

(1) The SPB will inform the Applicant in writing, as may be appropriate, and if applicable, in an alternative format, of the following:

(A) That the request for accommodation is granted or denied, in whole or in part, and if the request for accommodation is denied, the reason therefore; or that an alternative accommodation is granted:

(B) The nature of the accommodation to be provided, if any; and

(f) Denial of Accommodation Request

A request for accommodation may be denied only when the SPB determines that:

(1) The applicant has failed to satisfy the requirements of this rule;

(2) The requested accommodation would create an undue financial or administrative burden on the SPB; or

(3) The requested accommodation would fundamentally alter the nature of the service, program, or activity.

(g) Review Procedure

(1) An Applicant or any participant in the proceedings in which an accommodation request has been granted or denied may seek review of a determination made by the Presiding ALJ within 10 days of the date of the response by submitting, in writing, a request for review to the Chief Administrative Law Judge or his or her designee.

(h) Duration of Accommodations

The accommodation by the SPB must be provided for the duration indicated in the response to the request for accommodation and must remain in effect for the period specified. The SPB may provide an accommodation for an indefinite period of time for a limited period of time, or for a particular matter or appearance.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code; Section 754, Evidence Code and Judicial Rule 989.3.

HISTORY

1. New section filed 10-21-2010; operative 10-21-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 43).

§58.9. Interpreters.

Note • History

(a) As used in this section, “language assistance” means oral interpretation or written translation into English of a language other than English or of English into another language for a party or witness who cannot speak or understand English or who can do so only with difficulty.

(b) Nothing in this section limits the application or effect of section 754 of the Evidence Code to interpretation for a deaf or hearing impaired party or witness in an adjudicative proceeding.

(c) All hearings shall be conducted in English. If a party or the party's witness needs language assistance, that party or the party's witness must notify the Chief ALJ or the assigned ALJ, no later than 15 days before the hearing, that an interpreter is going to be utilized. Such notification must identify the interpreter, and provide evidence of certification.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, 11435.05, 11435.10, 11435.20 and 11435.25, Government Code.

HISTORY

1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§58.10. Official Notice.

Note • History

Official notice may be taken of those matters specified in section 11515 of the Government Code by the ALJ, Chief ALJ's designee, hearing officer, or presiding officer in any hearing or investigative review, in accordance with the provisions of that Section.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18675 and 11515, Government Code.

HISTORY

1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§58.11. Notice of Settlement.

Note • History

(a) The parties shall promptly notify the Appeals Division of any resolution that terminates a case assigned for hearing. The Appeals Division shall vacate all hearing dates upon receipt of a written request signed by all parties notifying the Appeals Division that the appeal or complaint, or personnel action has been withdrawn through settlement.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

Subarticle 4. Discovery

§59.1. Request for Discovery; Statements; Writings; Investigative Report; Witness List.

Note • History

(a) Except as otherwise provided in subsection (a)(1), each party to an appeal or complaint which is scheduled for a hearing is entitled to serve a request for discovery on any other named party to the complaint or appeal. All requests for discovery shall be served on the responding party no later than 90 days after filing the appeal or complaint with the Board. The right to inspect documents and interview witnesses provided for under Government Code section 19574.1 is separate and distinct from a request for discovery expressed in this section and is not governed by the provisions of this section.

(1) For appeals from Notice of Adverse Action served pursuant to Government Code section 19574 or 19590, a request for discovery may only be served by the Appellant or the Appellant's representative upon the Respondent as provided for in subdivision (a). However, a Respondent may serve a request for discovery on Appellant in said appeal no later than 15 days after the Prehearing/Settlement Conference solely for the purpose of obtaining information relevant to any affirmative defense raised by Appellant in the Prehearing/Settlement Conference statement.

(b) Any party seeking discovery beyond the 90 days from the filing of an appeal or complaint with the Board may do so only upon an order issued by the Chief ALJ or his or her designee. The party seeking discovery must file a petition showing good cause why they exceeded the 90 days, and shall attach a copy of the proposed discovery request. The matter will be decided upon the moving papers by the assigned ALJ, in his or her discretion, that such additional or late requests for discovery should be permitted in the furtherance of justice. No hearing on the motion will be scheduled.

(1) Each party to the appeal or complaint is entitled to request and receive from any other party to the appeal or complaint the names and home or business addresses of percipient witnesses to the event(s) in question, to the extent known to the other party and of individuals who may be called as witnesses during the course of the hearing, except to the extent that disclosure of the address is prohibited by law. The responding party may, at his or her discretion, provide either the home or business address of the witness, except to the extent that disclosure of the address is prohibited by law;

(2) Statements, as defined in Evidence Code section 225, to the extent such statements exist as of the date of the request, of witnesses proposed to be called during the hearing by the party and of other persons having personal knowledge of the act, omission, event, decision, condition, or policy which are the basis for the appeal. The responding party shall, upon a showing of good cause and subject to the discretion of the administrative law judge, subsequently amend their witness list if they intend to call additional witnesses not previously disclosed;

(3) All writings, as defined in Evidence Code section 250, that the responding party proposes to enter into evidence. The responding party shall, upon a showing of good cause and subject to the discretion of the ALJ, subsequently provide the requesting party with additional writings that it proposes to enter into evidence;

(4) Any other writing or thing that is relevant to the appeal or complaint; and

(5) Investigative reports made by or on behalf of any party pertaining to the act, omission, event, decision, condition or policy which is the basis for the appeal or complaint, including all supporting materials, pertaining to the subject matter of the proceeding, to the extent that these reports: (A) contain the names and home or business addresses of witnesses or other persons having personal knowledge of the facts, omissions or events which are the basis for the proceeding, unless disclosure of the address is prohibited by law, or (B) reflect matters perceived by the investigator in the course of his or her investigation, or (C) contain or include by attachment any statement or writing described in subsection (c)(5) (A) to (B), inclusive, or summary thereof.

(d) All parties receiving a request for discovery shall produce the information requested, or shall serve a written response on the requesting party clearly specifying which of those requested matters will not be produced and the basis for the non-production, within 30 days of receipt of the discovery request. The parties may extend the deadline by mutual agreement, by no more than 30 days.

(1) A responding party may object to any item or category demanded in a request for discovery in whole or in part. The objection must:

(A) Identify with particularity the specific document or evidence demanded to which the objection is made; and

(B) Set forth the specific ground for objection, including claims of privilege, work product, or right of privacy protection.

(D) If an objection is based on a claim that the information sought is protected work product, that claim shall be expressly asserted.

(2) If a responding party fails to serve a timely response to a request for discovery:

(A) The responding party waives any objection to the request for discovery, including one based on privilege or on the protection for work product.

(B) At the discretion of the assigned ALJ, a responding party may be relieved from this waiver based upon a determination that both of the following conditions are satisfied:

(i) The responding party has subsequently served a response that is in substantial compliance with the request for discovery, and

(ii) The responding party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.

(e) Failure to produce information or material responsive to a request for discovery may result in the exclusion of a witness or other evidence at the discretion of the assigned ALJ. A responding party may, at the discretion of the assigned ALJ, and upon a showing of good cause amend a response to request for discovery no later than 30 days prior to the evidentiary hearing.

NOTE

Authority cited: Sections 18701 and 18214, Government Code. Reference: Section 87164, Education Code; Sections 225 and 250, Evidence Code; and Sections 8547.8, 18670, 18671, 18672, 18672.1, 18673, 18675, 19683 and 19700-19706, Government Code.

HISTORY

1. New chapter 4 (sections 59.1-59.4) and renumbering and amendment of former section 57.2 to new section 59.1 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

2. Change without regulatory effect redesignating former chapter 4 as new subarticle 4 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).

3. Change without regulatory effect amending subsection (a) filed 10-28-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 44).

§59.2. Depositions.

Note • History

(a) On verified petition of any party, the Chief ALJ or the assigned ALJ may order the testimony of any material witness residing within or without the state be taken by deposition in the manner prescribed in Government Code section 18673.

(b) Any party who requests to submit a deposition in lieu of testimony at the hearing shall identify those portions of the deposition that are relevant to the issues of the case.

(c) At the discretion of the Chief ALJ or the assigned ALJ as set forth in section 56.1, in lieu of a deposition, witness testimony may be conducted by video conferencing.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 11511, 18673 and 18675, Government Code.

HISTORY

1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§59.3. Subpoenas.

Note • History

(a) Licensed members of the California State Bar in a representative capacity, may issue subpoenas and subpoenas duces tecum to compel attendance at a hearing, so long as the individual being served does not reside more than 100 miles from the location where the hearing or investigation is to be held, or more than 100 miles from the location where the witness testifies or is interviewed if testimony or a statement is taken electronically pursuant to section 58.6, whichever applies.

(1) If a witness resides more than 100 miles from the hearing location, the party intending to serve the subpoena must submit an affidavit attesting to the materiality of the witness to the Chief ALJ or his or her designee.

(b) Subpoenas and subpoenas duces tecum issued pursuant to (a)(1), or at the request of a person not licensed as a member of the State Bar, shall be issued by the Chief ALJ or his or her designee.

(c) Subpoenas and subpoenas duces tecum issued under this section shall be on a form provided by the Board, (SPB-76, Revised 12/09), attached as Appendix “A” to these regulations.

(d) A person served with a subpoena or subpoena duces tecum may object to its terms by a motion for a protective order and/or for a motion to quash. The motion shall be made within 15 days after receipt of the subpoena

(e) Witness fees are to be remitted pursuant to Government Code section 18674.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18672 through 18675, Government Code.

HISTORY

1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

2. Amendment of subsection (c) filed 10-21-2010; operative 10-21-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 43).

§59.4. Abuse of the Discovery Process; Sanctions.

Note • History

(a) Abuse of the discovery process includes, but is not limited to, the following:

(1) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery.

(2) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.

(3) Failing to respond or to submit to an authorized method of discovery.

(4) Making, without substantial justification, an unmeritorious objection to discovery.

(5) Making an evasive response to discovery.

(6) Disobeying an order to provide discovery.

(7) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.

(8) Failure to meet and confer for an informal resolution of a discovery dispute.

(b) At the discretion of the Chief ALJ or the assigned ALJ, any party who is found to have abused the discovery process as set forth in subdivision (a) shall be subject to sanctions as ordered by the Chief ALJ or the assigned ALJ. Such sanctions may include:

(1) An order prohibiting the introduction of designated matters into evidence by the abusing party;

(2) An order establishing designated facts, claims, or defenses against the abusing party; and/or

(3) Any other order as the Chief ALJ or assigned ALJ may deem appropriate under the circumstances.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§60. Definition and Purpose. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 11420.20, Government Code.

HISTORY

1. New section filed 4-4-2002; operative 4-4-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 14). For prior history, see Register 90, No. 22.

2. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

Subarticle 5. Law and Motion

§60.1. Law and Motion; Procedures; Motions.

Note • History

(a) The following motions shall be filed with the Appeals Division no later than 90 days from the date the appeal or complaint was filed with the SPB:

(1) Failure to State a Cause of Action: Will only be heard where it pertains to Discrimination, Harassment, Retaliation, and Whistleblower Retaliation Cases.

(2) Motion to Dismiss;

(3) Motion to Strike;

(4) Consolidation or severance of matters for hearing pursuant to section 57.2.

(b) The following motions shall be filed with the Appeals Division within 10 days subsequent to learning of the basis for the motion:

(1) Motions to compel deposition of an unavailable witness pursuant to section 60.3;

(2) Motion for Change of Venue.

(c) Prior to the filing and service of any law and motion matter under this section, the moving party must secure a date and time for the hearing on the motion from the Appeals Division Calendar Clerk, and this information shall be included on all copies of the motion filed with the SPB and served on all parties. The moving party shall file their motion with the Chief ALJ or his or her designee, and serve all parties no later than 30 days prior to the hearing date scheduled with the Appeals Division Calendar Clerk.

(d) Motions, Oppositions to Motions, and Replies to Oppositions must be filed with the Chief ALJ or his or her designee, and served on all parties pursuant to section 52.10.

(e) Oppositions to Motions must be filed with the Chief ALJ or his or her designee, and served on all parties no later than 15 days after service of the motion.

(f) Replies to Oppositions must be filed with the Chief ALJ or his or her designee, and served on all parties no later than 8 days after service of the Opposition.

(g) If the motion is to be heard via a telephonic conference call, the party requesting the telephonic conference call is responsible for making arrangements with a telephone service provider, such that the assigned ALJ shall be provided the opportunity to call into the conference call at the designated date and time of the hearing. Calling instructions shall be provided to the Appeals Division within 5 days prior to the hearing.

(h) Motions and Oppositions shall be limited to 15 pages. In addition, the motion may be supported by such documentation as affidavits, declarations, depositions, and matters of which official notice shall or may be taken. Replies to Oppositions shall be limited to 5 pages.

(1) Where a motion or opposition is supported by additional documentation, the motion must specifically identify the relevant portions of each piece of documentation. Failure to identify the relevant portions may, at the discretion of the Chief ALJ or his or her designee, result in the supporting documentation not being considered.

(i) Failure to comply with the requirements of subdivisions (a) through (h) may, in the discretion of the assigned ALJ, constitute sufficient ground for denial of the motion.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. New section filed 4-4-2002; operative 4-4-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 14). For prior histor, see Register 90, No. 22.

2. New chapter 5 (sections 60.1-60.3), repealer and new section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

3. Change without regulatory effect redesignating former chapter 5 as new subarticle 5 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).

§60.2. Motions for Hearing Continuances.

Note • History

(a) Motions for continuance of a hearing shall be considered only upon the moving papers. No hearing on the motion will be scheduled.

(b) Grounds for continuance

(1) Motions for continuances based upon good cause shall be considered only if filed no later than 10 days subsequent to learning of the basis for a continuance. Circumstances that may indicate good cause include:

(A) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;

(B) The unavailability of a party or counsel because of death, illness, or other excusable circumstances;

(C) The substitution of counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;

(D) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts.

(2) Motions for continuances by mutual agreement of the parties shall be considered only if filed no later than 90 days prior to the hearing. The motion must be signed by all parties or their representatives.

(3) When the acts or omissions that lead to an adverse action or rejection also lead to criminal charges being filed against the Appellant, continuances shall be granted when the parties mutually concur to allow for completion of the criminal proceedings, subject to the three year limitation in section 58.3.

(1) The moving party must meet and confer with all other parties on the motion prior to filing the motion with the Appeals Division, directed to the Chief ALJ or his or her designee pursuant to section 52.5.

(2) The motion shall include all facts which support the request to continue the hearing, as well as the following information;

(A) The case name and SPB case number;

(B) The date, time and place, and type of hearing to be continued;

(D) A list of all previous motions to continue the hearing and the dispositions;

(E) The positions of all nonmoving parties to the motion;

(F) Any future dates when the parties are unavailable for hearing over the next three months and any preferred future hearing dates;

(G) If Appellant is the moving party, whether Appellant waives the provisions of section 18671.1 of the Government Code; and

(H) All factual assertions must be accompanied by a declaration under penalty of perjury, that the facts are true and correct.

(d) In ruling on a motion for continuance, the ALJ shall consider all the facts and circumstances that are relevant to the determination. These may include:

(1) The proximity of the hearing date;

(2) Whether there was any previous continuance, extension of time, or delay of a hearing due to any party;

(3) The length of the continuance requested;

(4) The prejudice that parties or witnesses will suffer as a result of the continuance;

(5) The hearing calendar and the impact of granting a continuance on other pending cases;

(6) Whether counsel is engaged in another hearing;

(7) Whether all parties have stipulated to a continuance;

(8) Whether the interests of justice are best served by a continuance, by the hearing of the matter, or by imposing conditions on the continuance; and

(9) Any other fact or circumstance relevant to the fair determination of the motion.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. New section filed 4-4-2002; operative 4-4-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 14).

2. Repealer of former section 60.2 and renumbering of former section 52.5 to new section 60.2, including amendment of section heading, section and Note, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§60.3. Motion to Compel Discovery.

Note • History

(a) A petition or motion to compel a request to inspect documents under Government Code section 19574.1 is governed by the procedures provided in Government Code section 19574.2. Motions to compel a request for discovery issued pursuant to section 59.1 are governed by the procedures stated in this section 60.3, subdivisions (b) through (e).

(b) A party may serve and file with the Appeals Division a motion to compel discovery, naming as responding party any party who has refused or failed to provide discovery as required by section 59.1. A copy of the motion shall be served on the responding party on the same date the motion is filed with the Appeals Division. The motion shall be served upon the responding party and filed with the Appeals Division within 14 days after the responding party first evidenced his or her failure or refusal to comply with section 59.1.

(d) The motion shall state facts showing the responding party failed or refused to comply with section 59.1, a description of the matters sought to be discovered, the reason or reasons why the matter is discoverable under that section, that a reasonable and good faith attempt to contact the responding party for an informal resolution of the issue has been made, and the grounds of the responding party's refusal.

(e) Motions, responses and replies shall be limited to 15 pages. In addition, the motion may be supported by such documentation as affidavits, declarations, depositions, and matters of which judicial notice shall or may be taken.

(2) The responding party shall have a right to file an opposition to the motion within 15 days of service of the motion. Any reply to the opposition shall be filed with the Chief ALJ or his or her designee and served on the moving party within 10 days of service of the opposition motion.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 87164, Education Code; Section 915, Evidence Code; and Sections 8547.8, 18670, 18671, 18672, 18672.1, 18673, 18675, 19683 and 19700-19706, Government Code.

HISTORY

1. New section filed 4-4-2002; operative 4-4-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 14).

2. Repealer of former section 60.3 and renumbering of former section 57.3 to new section 60.3, including amendment of section heading, section and Note, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§60.4. Date, Time and Place of Mediation. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 11420.20, Government Code.

HISTORY

1. New section filed 4-4-2002; operative 4-4-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 14).

2. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§60.5. Attendance at Mediation. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 11420.20, Government Code.

HISTORY

1. New section filed 4-4-2002; operative 4-4-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 14).

2. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§60.6. Standards of Conduct for Neutral Mediators. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 11420.20, Government Code.

HISTORY

1. New section filed 4-4-2002; operative 4-4-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 14).

2. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§60.7. Agreements. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 11420.20, Government Code.

HISTORY

1. New section filed 4-4-2002; operative 4-4-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 14).

2. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§60.8. Termination of Mediation. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 11420.20, Government Code.

HISTORY

1. New section filed 4-4-2002; operative 4-4-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 14).

2. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§60.9. Confidentiality of Communications. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 11420.20, Government Code.

HISTORY

1. New section filed 4-4-2002; operative 4-4-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 14).

2. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§60.10. Alternate Resolution of the Complaint/Appeal. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 11420.20, Government Code.

HISTORY

1. New section filed 4-4-2002; operative 4-4-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 14).

2. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§61. Right to Respond to Charges Prior to Punitive Action. [Renumbered]

Note • History

NOTE

Reference: Section 19574, Government Code.

HISTORY

1. New section filed 10-16-75 as an emergency; designated effective 10-16-75 (Register 75, No. 42).

2. Amendment filed 1-15-76 as an emergency; designated effective 1-15-76. Certificate of Compliance included (Register 76, No. 3).

3. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

4. Renumbering of former section 61 to section 52.3 filed 4-26-90; operative 5-26-90 (Register 90, No. 22).

§62. Request to File Charges. [Renumbered]

Note • History

NOTE

Reference: Section 19583.5, Government Code.

HISTORY

1. New section filed 11-25-53; effective thirtieth day thereafter (Register 53, No. 21).

2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Renumbering and amendment of former section 62 to section 51.9 filed 4-26-90; operative 5-26-90 (Register 90, No. 22).

§63. Appeal. [Renumbered]

History

HISTORY

1. Renumbering and amendment of former section 63 to section 51.2 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 85, No. 48.

Article 7. Name Clearing Hearings

§63.1. Name Clearing Hearing Procedures.

Note • History

(a) In those situations where an employee's Limited Term (LT), Seasonal, or Temporary Authorization (TAU) appointment is terminated for fault, based on charges of misconduct which might stigmatize his or her reputation, or seriously impair his or her opportunity to earn a living, or which might seriously damage his or her standing or association in his community, the employee shall be entitled to file a request for a “Name Clearing” Hearing to be conducted by the appointing authority.

(b) Any Name Clearing Hearing conducted by an appointing authority should, at a minimum, conform to the following requirements:

(1) The employee should file his or her request with the appointing authority within five business days of the effective date of the notice of termination;

(2) The appointing authority should conduct the hearing and issue its decision within 21 days of the effective date of the notice of termination, unless the employee agrees to a hearing to be conducted at a later date;

(3) The employee should be entitled to be represented by a representative of his or her choosing;

(4) The appointing authority's representative should be a neutral, impartial decision-maker, who has the authority to sustain the termination, or revoke the “for fault” designation concerning the appellant's termination;

(c) Upon conclusion of the hearing, the appointing authority's representative shall determine whether the allegations contained in the notice of termination are supported. If the allegations are not supported, a decision shall be issued to reflect that the employee's termination was without fault. Such a decision will not, however, require that the appellant be reinstated to his or her position, except as otherwise required by law.

(d) The Board does not conduct Name Clearing Hearings, nor is there any right of appeal to the Board from a decision by an appointing authority, except as otherwise required by law.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.

HISTORY

1. New subarticle 7 (section 63.1) and section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

2. Change without regulatory effect redesignating former subarticle 7 as new article 7 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).

§64. Time of Filing. [Renumbered]

History

HISTORY

1. New sections 64 and 65 filed 12-23-47 (Register 10, No. 8).

2. Repealer of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Renumbering and amendment of former section 64 to section 51.2(e) filed 4-26-90; operative 5-26-90 (Register 90, No. 22).

Article 8. Discrimination Complaint Process

§64.1. Discrimination; Harassment; Retaliation; Denial of Reasonable Accommodation.

Note • History

Any state civil service employee, or applicant for state civil service employment, who reasonably believes that he or she has been subjected to discrimination, harassment, retaliation, or denied reasonable accommodation for a known physical or mental disability in state employment, on any basis listed in section 19701 or 19702 of the Government Code, or subdivision (a) of section 12940 of the Government Code, as those bases are defined in Sections 12926 and 12926.1 of the Government Code, may file a complaint by complying with the provisions of Sections 64.2 through 64.6.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18675, 19701 and 19702, Government Code.

HISTORY

1. New subarticle 8 (sections 64.1-64.6) and section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

2. Change without regulatory effect redesignating former subarticle 8 as new article 8 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).

§64.2. Prerequisites for Filing a Discrimination Complaint with the Board.

Note • History

Any state civil service employee or applicant for state civil service employment who reasonably believes that he or she has been subjected to discrimination, harassment, retaliation, or denied reasonable accommodation for a known physical or mental disability in employment shall first file a written complaint with the appointing power's Equal Employment Opportunity Office, or other office or individual designated by the appointing power to investigate such complaints, prior to filing a discrimination complaint with the SPB.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18675, 19701 and 19702.1, Government Code.

HISTORY

1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§64.3. Appointing Power Discrimination Complaint Process.

Note • History

(a) Each appointing power shall establish in writing its own internal discrimination complaint process through which a complainant may obtain review of, and a written response to, an allegation of discrimination, harassment, retaliation, or denial of reasonable accommodation for a known physical or mental disability.

(b) Each complaint filed with the appointing power shall be in writing and shall state the facts upon which the complaint is based, and the relief requested, in sufficient detail for the appointing power to understand the nature of the complaint and to determine the individuals involved. The complained of act, omission, event, decision, condition, or policy must have occurred no more than one year prior to the date that the complaint is filed with the appointing power. This period may be extended by not more than 90 days in those cases where the complainant first obtained knowledge of the facts of the alleged discrimination more than one year from the date of its occurrence.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18675, 19701 and 19702, Government Code.

HISTORY

1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§64.4. Response of Appointing Power to Discrimination Complaint.

Note • History

(a)The appointing power shall provide the complainant a written decision within 90 days of the complaint being filed. If the appointing power has not completed its review and/or is unable to provide a written decision within the 90 day time period, the appointing power shall, within that same time period, inform the complainant in writing as to the reason(s) it is unable to issue its decision within the required time period.

(b) Upon the expiration of the 90 day time period stated in this section, Complainant may thereafter file a discrimination complaint with the SPB as provided in section 64.5. However, a discrimination complaint may not be filed with the SPB more than 150 days after the complainant filed his or her complaint of discrimination with the appointing power.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18675, 19701 and 19702, Government Code.

HISTORY

1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§64.5. Requirements for Filing Discrimination Complaint with the SPB.

Note • History

Any complaint to the SPB alleging discrimination, harassment, retaliation, or denial of reasonable accommodation for a known physical or mental disability shall be subject to the following filing requirements:

(a) The complaint shall be filed with the Appeals Division within 30 days of the date the appointing power served its decision concerning the complaint of discrimination on the Complainant. If the appointing power has failed to provide a decision to the Complainant within 90 days of the complaint being filed, the Complainant may file a complaint with the Appeals Division within 150 days of the date the Complainant filed his or her complaint of discrimination with the appointing power.

(b) The Complainant shall submit to the Appeals Division a complaint and any attachments, and enough copies for the SPB to serve each entity and person alleged to have engaged in discriminatory conduct and against whom damages and/or disciplinary action is sought.

(1) identify the facts that form the basis for the complaint, including, but not limited to the specific protected classification or activity as set forth in sections 19701 or 19702 of the Government Code; all discriminatory acts experienced by the Complainant, including the date that each act occurred; the name and job title of each person who allegedly subjected Complainant to each discriminatory act; and all information that the Complainant possesses that shows that the complained of employment action(s) were the result of discriminatory conduct;

(2) identify all Respondents known to the complainant (i.e. the appointing power as well as all state employees alleged to have discriminated against the complainant), and identify the business address of each Respondent named as a party to the complaint. Unless the complainant names some other known Respondent, the Complainant's appointing power shall be considered the sole Respondent;

(3) have attached a copy of the Complainant's complaint of discrimination filed with the appointing power, together with a copy of the decision or other response of the appointing power to the complaint. If the appointing power failed to provide the Complainant with a written decision or other response to the discrimination complaint within the time period set forth in section 64.4, the Complainant shall so state in the complaint;

(4) specify the relief and/or remedies sought by the Complainant; and

(5) be limited to a maximum of 15 pages of double-spaced typed or printed text. Additional pages may be allowed upon a showing of good cause. The Complainant shall submit a separate document with the complaint stating the reasons for good cause. The 15 page limit does not apply to any documents attached to the complaint pursuant to the requirements of subdivisions (3) of this section, or any other exhibits.

(d) The above procedures do not apply in those cases where a complaint raises discrimination as an affirmative defense to any case scheduled for hearing. A party who raises discrimination solely as an affirmative defense shall not be entitled to the relief specified in section 19702 of the Government Code, unless that party has also complied with all filing requirements set forth in sections 64.2 through 64.6.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18675, 19701 and 19702, Government Code.

HISTORY

1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

2. Change without regulatory effect amending subsection (c)(5) filed 3-30-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 13).

§64.6. Acceptance of Complaint; Notice.

Note • History

(a) If, after review of the complaint, the Appeals Division determines that the complaint does not meet all filing requirements, the Appeals Division shall notify the Complainant in writing of the reasons for its determination. The Complainant may file an amended complaint within 20 days of receipt of the notice of rejection of the complaint.

(b) Upon acceptance of the complaint or amended complaint, the Appeals Division shall serve the operative complaint on the named Respondents by mailing a copy of the complaint to the legal office, or other designated office, of the appointing power, and to the business address of any individually named respondent.

(c) The provisions of Article 6 of these regulations apply to discrimination complaints accepted by the Appeals Division.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18675, 19701 and 19702, Government Code.

HISTORY

1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§65. Answer. [Repealed]

History

HISTORY

1. Editorial correction restoring inadvertently omitted section (Register 95, No. 5).

2. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§66. Dismissal of Appeals Not Brought to Hearing. [Renumbered]

Note • History

NOTE

Reference: Section 18675, Government Code.

HISTORY

1. New section filed 5-17-68; effective thirtieth day thereafter (Register 68, No. 18).

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Renumbering and amendment of former section 66 to section 52.2 filed 4-26-90; operative 5-26-90 (Register 90, No. 22).

Article 9. Merit Issue Complaints

§66.1. Merit Issue Complaints.

Note • History

(a) Merit issue complaints are complaints that the State Civil Service Act or Board regulation or policy has been violated by a state agency. These complaints include but are not limited to, interference with promotional opportunities, interference with a person's access to any SPB appeals process, and the designation of managerial positions pursuant to Government Code section 3513. Merit issue complaints do not include appeals of actions that are specifically provided for elsewhere in law or in Board regulations. Each state agency shall establish and publicize to its employees its process for addressing merit issue complaints. That process shall include provisions for informing employees of their right to appeal the state agency's decision on the merit issue complaint to the Appeals Division. Failure of a state agency to respond to a merit issue complaint within 90 days of receipt of the complaint shall be deemed a denial of the complaint's allegations and shall release the appellant to file an appeal directly with the Appeals Division. An appeal of a merit issue complaint shall be filed with the Appeals Division within 30 days of the state agency's denial of the complaint.

(b) Merit Issue Complaints are assigned to investigative review by an Investigative Officer pursuant to section 53.2.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 12940, 18675, 18952, 19701, 19702, 19230 and 19231, Government Code.

HISTORY

1. New subarticle 9 (section 66.1) and renumbering and amendment of former section 53.1 to new section 66.1 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

2. Change without regulatory effect redesignating former subarticle 9 as new article 9 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).

§67. Reference to Hearing Officer. [Renumbered]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: 18671, 18675 and 19582, Government Code.

HISTORY

1. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 60, No. 24.

2. Amendment filed 11-26-85; effective thirtieth day thereafter (Register 85, No. 48).

3. Renumbering and amendment of former section 67 to section 52 filed 4-26-90; operative 5-26-90 (Register 90, No. 22).

Article 10. Whistleblower Retaliation Complaint Process

§67.1. Whistleblower Retaliation Complaints.

Note • History

Any state employee or applicant for state employment, or any employee or applicant for employment with a California Community College, who believes that he or she has been retaliated against in employment for having reported improper governmental activity, as that phrase is defined in Government Code section 8547.2(b), or Education Code section 87162(c), or for having refused to obey an illegal order or directive, as defined in Government Code section 8547.2(e), or Education Code section 87162(b), may file a complaint and/or appeal with the State Personnel Board in accordance with the provisions set forth in sections 67.2 through 67.8. For purposes of complaints filed by community college employees or applicants for community college employment, the local community college district shall be deemed the “appointing power.”

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 87162 and 87164, Education Code; and Sections 8547.2, 8547.8 and 19683, Government Code.

HISTORY

1. New subarticle 10 (sections 67.1-67.8) and renumbering of former section 56 to new section 67.1, including amendment of section heading, section and Note, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

2. Change without regulatory effect redesignating former subarticle 10 as new article 10 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).

§67.2. Requirements for Filing Whistleblower Retaliation Complaint with the State Personnel Board.

Note • History

An individual desiring to file a complaint of retaliation with the SPB must adhere to the following requirements:

(a) The complaint shall be filed with and received by the Appeals Division within one year of the most recent alleged act of reprisal. The complaining party shall submit an original complaint and copy of all attachments, and enough copies of the complaint and attachments for the Appeals Division to serve each entity and person alleged to have engaged in retaliatory conduct and against whom damages and/or disciplinary action is sought.

(b) All complaints shall be in writing and shall identify and include the following:

(1) Clearly identify the protected activity that the Complainant engaged in, the date(s) the Complainant reported the improper governmental activity, and the person(s) to whom the Complainant reported the improper governmental activity;

(2) Clearly identify the specific act(s) of reprisal or retaliation alleged to have occurred, and the entity and/or person(s) responsible for the reprisal or retaliation;

(3) A sworn statement, under penalty of perjury, that the contents of the complaint are true and correct;

(4) The name and business address of each individual and entity alleged to have committed reprisal or retaliatory acts;

(5) Specify what relief and/or damages Complainant is seeking against anyRespondent(s) as a result of the alleged reprisal or retaliation, and include an extra copy of the complaint and all accompanying documents for the SPB to serve on each of the Respondents; and

(6) Whether the Complainant has filed a complaint of retaliation with the Office of the Inspector General pursuant to Penal Code section 6129, and if so, the date the complaint was filed.

(c) If adverse action is sought against any individually named Respondent, pursuant to the provisions of Government Code section 19574, the complaint must clearly state the facts constituting the cause or causes for adverse action in such detail as is reasonably necessary to enable the accused employee to prepare a defense thereto.

(d) Each complaint shall be limited to a maximum of 15 pages of double-spaced typed or printed text, not including exhibits. Additional pages may be allowed upon a showing of good cause. The Complainant shall submit a separate document with the complaint stating the reasons for good cause.

(e) The above procedures do not apply in those cases where an Appellant raises retaliation as an affirmative defense when appealing a notice of adverse action, pursuant to Government Code sections 19575 or 19590, when appealing a notice of rejection during probation, pursuant to Government Code section 19175, when appealing a notice of medical action, pursuant to Government Code section 19253.5, when appealing a notice of non-punitive action, pursuant to Government Code Section 19585, or when appealing a notice of career executive assignment termination pursuant to Government Code section 19889.2. Neither the remedies nor the relief available to a complaining party pursuant to the provisions of Government Code sections 8547.8 or 19683, shall, however, be available to a party who raises whistleblower retaliation as either an affirmative defense or as a separate cause of action in any other SPB hearing, unless that party has first complied with all filing requirements set forth in this section.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 87164, Education Code; Sections 8547.3, 8547.8, 18670, 18671, 18675, 19175, 19253.5, 19572, 19583.5, 19585, 19683 and 19889.2; and Section 6129, Penal Code.

HISTORY

1. Renumbering of former section 56.1 to new section 67.2, including amendment of section and Note, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§67.3. Acceptance of Whistleblower Complaint.

Note • History

(a) Within 10 business days of receipt of the complaint, the Appeals Division shall determine whether it has jurisdiction over the complaint and whether the Complainant meets the filing requirements set forth in section 67.2. The Appeals Division shall also determine whether the complainant has complied with all other requirements for filing a retaliation complaint, as set forth in Government Code sections 8547-8547.12 and 19683 and/or Education Code sections 87160-87164.

(b) If the Appeals Division determines that the complaint does not meet all filing requirements, it shall notify the complaining party in writing that the complaint has not been accepted and the reason(s) for that determination. The complaining party may thereafter be permitted to file an amended complaint within 10 business days of service of the notice of non-acceptance of the complaint.

(c) Unless time is extended by the complaining party in writing, the Executive Officer shall, within 10 business days of receipt of the complaint or amended complaint, notify the complaining party of a decision to either:

(1) dismiss the complaint for failure to meet jurisdictional or filing requirements; or

(2) refer the case for investigation in accordance with the provisions of section 67.4; or

(3) schedule the case for an informal hearing before a hearing officer in accordance with the provisions of section 67.5.

(d) Except for those complaints amended pursuant to subsection (b), any amendment for a whistleblower retaliation complaint may only be accepted upon a showing of good cause.

(e) In accordance with the provisions of Penal Code section 6129, the SPB shall be entitled to defer review of a complaint filed by an employee of the Department of Corrections and Rehabilitation in those cases where the employee has filed a similar complaint with the Office of the Inspector General.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 87160-87164, Education Code; Sections 8547-8547.2, 8547.8, 18670, 18671, 18675, 19572, 19574, 19575, 19683 and 19590, Government Code; and Section 6129, Penal Code.

HISTORY

1. Renumbering of former section 56.2 to new section 67.3, including amendment of section and Note, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

2. Change without regulatory effect amending subsection (c)(3) filed 1-6-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 1).

§67.4. Cases Referred to Investigation.

Note • History

(a) If the Executive Officer assigns a complaint for investigation, the Executive Officer or the assigned investigator(s) shall conduct the investigation in the manner and to the degree they deem appropriate, and shall have full authority to question witnesses, inspect documents, and visit state facilities in furtherance of their investigations. All state agencies and employees shall cooperate fully with the investigators, or be subject to disciplinary action for impeding the investigation. The investigators, pursuant to the provisions of Government Code section 18671, shall have authority to administer oaths, subpoena and require the attendance of witnesses and the production of books or papers, and cause the depositions of witnesses residing within or without the state to be taken in the manner prescribed by law for like depositions in civil cases in the superior court of this state under Article 3 (commencing with section 2016) of Chapter 3 of Title 4 of Part 4 of the Code of Civil Procedure, in order to ensure a fair and expeditious investigation.

(b) The Executive Officer shall issue findings regarding the allegations contained in the complaint and a recommended remedy, if any, based on the investigation, in accordance with the provisions of section 67.6.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 87164, Education Code; Sections 8547.8, 18670, 18671, 18675, 19582, 19583.5 and 19683, Government Code; Section 6129, Penal Code, and Section 2016 et seq., Civil Procedure Code.

HISTORY

1. Renumbering of former section 56.3 to new section 67.4, including amendment of section and Note, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§67.5. Cases Referred to Informal Hearing.

Note • History

(a) For those complaints assigned to an informal hearing before a Hearing Officer the Appeals Division shall serve notice of the informal hearing on all parties to the complaint a minimum of 30 days prior to the scheduled hearing date. Service on each respondent shall be made at the respondent's business address. The notice shall:

(1) include a complete copy of the complaint with all attachments, and a copy of the statutes and rules governing the informal hearing; and

(2) require each named respondent to serve on the Complainant and file with the Appeals Division, at least 10 days prior to the informal hearing, a written response to the complaint, signed under penalty of perjury, specifically addressing the allegations contained in the complaint.

(b) The informal hearing shall be conducted in conformance with those procedures set forth in Government Code section 11445.10 et seq., and may in the discretion of the Hearing Officer, include such supplemental proceedings as ordered by the Hearing Officer, and as permitted by section 11445.10 et seq., of the Government Code, to ensure that the case is heard in a fair and expeditious manner. The Hearing Officer shall have full authority to question witnesses, inspect documents, visit state facilities in furtherance of the hearing, and otherwise conduct the hearing in the manner and to the degree he or she deems appropriate. The informal hearing and any supplemental proceedings shall be recorded by the Hearing Officer. All parties shall, upon request and payment of applicable reproduction costs, be provided with a transcript or a copy of the recording of the informal hearing.

(c) Following the informal hearing and any supplemental proceedings, the Hearing Officer shall issue findings for consideration by the Executive Officer regarding the allegations contained in the complaint, together with all recommended relief, if any, proposed to remedy any retaliatory conduct.

(d) The Executive Officer shall have the discretion to adopt the Hearing Officer's findings and recommended remedies in their entirety; modify the Hearing Officer's findings and recommended remedies; or reject the Hearing Officer's findings and recommended remedies, and:

(1) issue independent findings after reviewing the complete record; or

(2) remand the case back to the Hearing Officer, or refer the matter to an ALJ for further proceedings.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 87164, Education Code; Sections 8547.8, 11445.10 et seq., 11513, 18670, 18671, 18672, 18675, 19572, 19574, 19575, 19582, 19590, 19592 and 19683, Government Code; and Section 6129, Penal Code.

HISTORY

1. Renumbering of former section 56.4 to new section 67.5, including amendment of section heading, section and Note, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§67.6. Findings of the Executive Officer.

Note • History

(a) The Executive Officer shall issue a Notice of Findings within 60 business days of the date the Executive Officer accepts the complaint pursuant to section 67.3, unless the complaining party agrees, in writing, to extend the period for issuing the findings, or unless the time period is otherwise tolled.

(b) In those cases where the Executive Officer concludes that the allegations of retaliation were not proven by a preponderance of the evidence, the Executive Officer shall issue a Notice of Findings dismissing the complaint and that decision shall be deemed the final decision of the Board. The Notice of Findings shall notify the Complainant that his or her administrative remedies have been exhausted and that the Complainant may pursue whatever judicial remedies are available to him or her.

(c) In those cases where the Executive Officer concludes that the Complainant proved one or more of the allegations of retaliation by a preponderance of the evidence, the Notice of Findings shall identify the allegations deemed substantiated, and the named Respondents deemed to have engaged in retaliatory acts. If the Notice of Findings concludes that any individual manager, supervisor, or other employee engaged in improper retaliatory acts, the Notice of Findings shall identify the legal causes for discipline under section 19572 of the Government Code.

(d) The Notice of Findings shall inform any Respondent found to have engaged in retaliatory acts of his or her right to request a hearing regarding the Notice of Findings. Any such request shall be filed with the Executive Officer, and served on all other parties within 30 days of the issuance of the Notice of Findings. Upon receipt of a timely request for hearing, the Board shall, at its discretion, schedule a hearing before the Board, or an evidentiary hearing before an ALJ, regarding the findings of the Executive Officer. The hearing shall be conducted in accordance with Article 6, beginning with section 56.1. If a timely request for hearing is not filed with the SPB, the Board may order any appropriate relief, including, but not limited to, reinstatement, back pay, restoration of lost service credit, if appropriate, compensatory damages, and the expungement of any adverse records of the state employee or applicant for state employment who was the subject of the alleged acts of misconduct prohibited by section 8547.3 of the Government Code.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 87164, Education Code; Sections 8547.8, 18670, 18671.1, 18675, 19572, 19574, 19575, 19582, 19590 and 19683, Government Code; and Section 6129, Penal Code.

HISTORY

1. Renumbering of former section 56.5 to new section 67.6, including amendment of section and Note, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§67.7. Disciplinary Action for Proven Retaliatory Acts.

Note • History

(a) In those cases where the Board issues a final decision that finds that a manager, supervisor, or other state civil service employee has engaged in improper retaliatory acts, the Board shall order the appointing authority to place a copy of the Board's decision in that individual's Official Personnel File within 30 days of the issuance of the Board's order and to also, within that same time period, notify the Office of the State Controller of the disciplinary action taken against the individual. The appointing authority shall also, within 40 days of the issuance of the Board's order, notify the Board that it has complied with the provisions of this subdivision.

(1) In accordance with the provisions of Penal Code section 6129, subdivision (c)(3), any employee of the Department of Corrections and Rehabilitation found to have engaged in retaliatory acts shall be disciplined by, at a minimum, a suspension without pay for 30 days, unless the Board determines that a lesser penalty is warranted. In those instances where the Board determines that a lesser penalty is warranted, the decision shall specify the reasons for that determination.

(b) In those cases where the Board issues a final decision that finds that any community college administrator, supervisor, or public school employer, has engaged in improper retaliatory acts, the Board shall order the appointing authority to place a copy of the Board's decision in that individual's Official Personnel File within 30 days of the issuance of the Board's order and also, within 40 days of the issuance of the Board's order, notify the Board that it has complied with the provisions of this subdivision.

(c) Any decision, as described in subdivision (a) or (b), shall be deemed a final decision of the Board and the individual against whom the disciplinary action was taken shall not have any further right of appeal to the Board concerning that action, with the exception of a Petition for Rehearing.

(d) For purposes of this Section, the Board's decision is deemed to be final after:

(1) 30 days has elapsed from the date the Executive Officer issued his or her Notice of Findings dismissing the complaint; or

(2) a request for hearing pursuant to section 67.7(c) has not been timely filed with the Board; or

(3) 30 days has elapsed from the date that the Board has issued a decision adopting or modifying the proposed decision submitted by an administrative law judge after an evidentiary hearing and a Petition for Rehearing concerning that decision has not been filed with the Board; or

(4) a decision has been issued by the Board after a hearing before that body and no Petition for Rehearing concerning that decision has been filed with the Board.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 87164, Education Code; Sections 8547.8, 18670, 18671, 18675, 18710, 19572, 19574, 19582, 19583.5, 19590, 19592 and 19683, Government Code; and Section 6129, Penal Code.

HISTORY

1. Renumbering of former section 56.6 to new section 67.7, including amendment of section and Note, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

§67.8. Consolidation with Other Hearings.

Note • History

(a) The Executive Officer or the assigned ALJ shall possess the requisite discretion to direct that separate, reasonably related cases be consolidated into a single hearing. Whenever two or more cases are consolidated, the assigned administrative law judge shall permit the parties a reasonable opportunity to conduct discovery prior to the first scheduled hearing date, if the discovery provisions set forth in sections 59.1 through 59.4 are negatively impacted by the consolidation.

(b) In those cases where one or more individually named Respondents have been joined in the consolidated hearing, the administrative law judge may, in his or her discretion, make such orders as may appear just in order to prevent any named Respondent from being embarrassed, delayed, or put to undue expense, and may order separate hearings or make such other order as the interests of justice may require.

(c) In those cases where an appeal from adverse action, rejection during probationary period, medical action, or non-punitive action is consolidated with a whistleblower retaliation complaint, and the whistleblower retaliation complaint identifies specifically named individuals against whom damages or adverse action is sought pursuant to the provisions of section 67.2(c), each individually named Respondent shall have the right to participate in the consolidated hearing in such a manner as to reasonably defend him or herself against the allegations contained in the whistleblower retaliation complaint. These rights shall include, but not be limited to:

(1) to be represented by a representative of his or her own choosing during the consolidated hearing;

(2) to present a defense on his or her own behalf concerning the allegations and issues raised in the whistleblower retaliation complaint, separate and apart from any defense presented by the appointing power or any other named Respondent;

(3) to conduct pre-hearing discovery concerning allegations and issues raised in the whistleblower retaliation complaint;

(4) to examine and cross examine witnesses concerning allegations and issues raised in the whistleblower retaliation complaint;

(5) to introduce and challenge the introduction of evidence concerning allegations and issues raised in the whistleblower retaliation complaint; and

(6) to present oral and/or written argument to the decision-maker concerning allegations and issues raised in the whistleblower retaliation complaint.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 8547.8, 11513, 18670, 18671, 18672, 18675, 19175, 19253.5, 19575, 19582, 19585, 19590 and 19683, Government Code.

HISTORY

1. Renumbering of former section 56.7 to new section 67.8, including amendment of section and Note, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

Appendix A

HISTORY

1. New Appendix B filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).

. 2. Redesignation and amendment of former Appendix B as Appendix A filed 10-21-2010; operative 10-21-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 43).

3. Change without regulatory effect amending Appendix A filed 11-30-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 49).

4. Change without regulatory effect amending antepenultimate line of Form SPB-76 filed 1-12-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 2).

5. Change without regulatory effect amending sections 2.e. and 2.f. of Form SPB-76 within Appendix A filed 4-6-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 14).

§68. Hearing and Decision. [Repealed]

Note • History

NOTE

Reference: Sections 18675 and 19582, Government Code.

HISTORY

1. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 53, No. 16.

2. Repealer filed 4-26-90; operative 5-26-90 (Register 90, No. 22).

§69. Rehearing. [Renumbered]

Note • History

NOTE

Authority: Section 18701, Government Code. Reference: Sections 19700, 19701, 19702, 19702.1, 19702.2, 19702.5, 19703, 19704 and 19705, Government Code.

HISTORY

1. New article 25 (sections 547, 547.1 and 547.2) filed 3-22-76; effective thirtieth day thereafter (Register 76, No. 13).

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Renumbering and amendment of former section 69 to section 51.7 filed 4-26-90; operative 5-26-90 (Register 90, No. 22).

§70. Decision Becomes Final When. [Renumbered]

History

HISTORY

1. Amendment filed 6-28-48 (Register 13, No. 3).

2. Renumbering and amendment of former section 70 to section 51.6 filed 4-26-90; operative 5-26-90 (Register 90, No. 22).

§73. Public Hearing; Counsel. [Renumbered]

History

HISTORY

1. Renumbering and amendment of former section 73 to sections 51.4 and 51.5 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 85, No. 48.

§74. Exclusion of Witnesses. [Renumbered]

History

HISTORY

1. New section filed 11-13-48 (Register 11, No. 2)

2. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Renumbering and amendment of former section 74 to section 52.1 filed 4-26-90; operative 5-26-90 (Register 90, No. 22).

Subchapter 1.3. Examination and Appointments

HISTORY

1. Change without regulatory effect adding new subchapter 1.3 filed 1-26-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 4).

Article 1. [Reserved]

Article 2. [Reserved]

Article 3. [Reserved]

Article 4. [Reserved]

Article 5. Compensation [Repealed]

HISTORY

1. Repealer of Article 5 (Sections 90, 91, 91.1, 91.5, 92-95, 98, 98.1-98.7, 98.9, 101, 102, 102.5-102.7, 103, 106, 108, 111 and 112) filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35). For prior history of Article 5, including Sections 96, 97, 100, 104, 107, 109 and 110, see Register 77, No. 15.

Article 6. Overtime [Repealed]

HISTORY

1. Repealer of Article 6 (Sections 130, 130.5, 131-137, 137.5, 139 and 139.1) filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35). For prior history of Article 6, including Section 138, see Registers 79, No. 42 and 77, No. 15.

Article 7. Employment Lists

For the general statutory provisions on this subject, refer to Section 18900 of the act and sections following.

§151. Eligibility After Appointment.

History

When an eligible receives a limited term appointment, that eligible's name shall be continued on the employment list for permanent certification. When an eligible receives a permanent appointment, that eligible's name shall be removed from the employment list.

HISTORY

1. Amendment of section filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§151.3. Restoration of Name for Limited-Term Certification.

Note • History

Upon the recommendation of an appointing power and with the approval of the executive officer, the name of an employee who has served satisfactorily under limited-term appointment and who resigns may be restored to the employment list for further limited-term certification.

NOTE

Reference: Section 19083, Government Code.

HISTORY

1. New section filed 7-10-56; effective thirtieth day thereafter (Register 56, No. 13).

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§151.5. Limited Term Eligible Lists.

Note • History

When the needs of the service require, the executive officer may hold examinations and establish eligible lists therefrom for use exclusively in making limited term appointments. No person shall be given a permanent appointment nor gain permanent status by appointment from such a limited term eligible list.

NOTE

Reference: Section 19083, Government Code.

HISTORY

1. New section filed 10-10-50 as an emergency; effective upon filing (Register 22, No. 1).

2. Amendment filed 7-10-56; effective thirtieth day thereafter (Register 56, No. 13).

3. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§152. Preferred Limited Term List.

A preferred limited term list may be established for any class, containing the names of limited term employees who have served satisfactorily in positions recurring seasonally in a given state agency and who have been recommended by the appointing power for inclusion on such list. Such preferred limited term list shall be established to correspond to the same geographical, organizational, or functional subdivisions of state agencies as may be observed in establishing the departmental reemployment lists for the same class. Names shall be included on the preferred limited term list in the relative order of the original examination ratings of the eligibles. In filling limited term vacancies in a given state agency, the preferred limited term list for that agency shall be given preference over the eligible list but not over any other employment list. The name of any eligible included on the preferred limited term list may be continued on such list after the abolishment of the eligible list from which the eligible was originally certified; but under no circumstances and at no time shall any person be certified from the preferred limited term list to a permanent position or be permitted to acquire permanent status as a result of certification and appointment from any such list.

§153. Inactive Status.

Note • History

If a person's name is placed on inactive status at that person's request, it may, upon that person's written request and in the discretion of the executive officer, be restored to active status on the list. If a person's name is placed on inactive status without that person's request, it will be restored to active status only if the board or the executive officer finds that there is good cause therefor. In any case, the person's name may be restored to active status only if the employment list on which the person has inactive status is still in existence; and the name shall be restored to active status according to the person's earned rating in the examination or combined score for efficiency and seniority, when restored to a reemployment list in a class designated as professional, scientific, administrative, management or executive, as the case may be.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18900, Government Code.

HISTORY

1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

2. Amendment filed 10-9-85; effective thirtieth day thereafter (Register 85, No. 42).

§154. Transfer of Promotional List Eligibility.

Note • History

Employees with promotional list eligibility who move from one agency or subdivision to another agency or subdivision without a break in service may transfer such promotional list eligibility to the appropriate promotional list of the new agency or subdivision is such list was established as a result of an examination for the same subject matter and with the same education and experience admittance requirements.

An employee who reenters State service in a new agency or subdivision within 6 months after a resignation and who, had he/she returned to the former agency or subdivision, would have been eligible for certification from a promotional list under (the) provisions of Section 240, may apply to have eligibility transferred to the appropriate list or lists of the new agency or subdivision under the provisions of this rule.

Eligibility shall be transferred upon receipt of the written request of the employee with the concurrence of the employee's new appointing power and the employee's name shall then be placed on the appropriate promotional list or lists in accordance with the score received in the examination.

When the movement of an employee is the result of the transfer of a function or the administration of a law from one State agency to another State agency, the above restrictions are not applicable.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18950, Government Code.

HISTORY

1. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 61, No. 26.

2. Amendment filed 4-3-79; effective thirtieth day thereafter (Register 79, No. 14).

3. Amendment filed 2-6-87; effective thirtieth day thereafter (Register 87, No. 6).

4. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

Article 8. Examinations

For the general statutory provisions on this subject, refer to Section 18930 of the act and sections following.

§171. Announcement.

Note • History

Examinations shall be held at such times and places as the executive officer may determine. The executive officer shall direct the preparation of every examination and the publication of an announcement thereof. The announcement shall specify the basis of competition to be permitted in the examination. An examination may be given on a promotional-only basis, a combined open and promotional basis, an open-only basis, or an open, nonpromotional basis. Each announcement shall state the title, salary range, and where appropriate, the duties of the class; the method of evaluating the education, experience, and personal qualifications of the competitors; such information as is required by the act and these rules; and such additional information as the executive officer may deem proper. An examination may be canceled by the executive officer at any time prior to the establishment of the employment list.

NOTE

Reference: Section 18950, Government Code.

HISTORY

1. Amendment filed 11-1-72; effective thirtieth day thereafter (Register 72, No. 45). For prior history, see Register 70, No. 47.

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§171.1. Amount of Time Required to Meet Minimum Qualifications.

Note • History

Unless otherwise provided in the class specification adopted by the board, when determining whether an applicant has completed the minimum time required by the experience component in the minimum qualifications prescribed for the class, the following shall apply:

(a) The calendar time required shall have been in a full-time job or work assignment. A full-time job or work assignment is the maximum number of hours an individual can spend on a job without a requirement that he/she be given overtime compensation or, where overtime is not applicable, the number of hours required for an individual to receive full-time pay for the applicable work period.

(b) An applicant must have the required calendar time unless the applicant worked two different jobs concurrently. the time spent on two different qualifying jobs worked concurrently shall be added together to determine the total amount of qualifying experience.

(d) Less than full-time experience shall be credited based upon the percentage of full-time worked while employed less than full-time [e.g., half-time (50%) employment for six months equals three months of full-time experience].

NOTE

Authority cited: Government Code Section 18701. Reference: Government Code Section 18931.

HISTORY

1. New section filed 7-3-90; operative 8-2-90 (Register 90, No. 35).

§172. General Qualifications.

Note • History

All candidates for, appointees to, and employees in the state civil service shall possess the general qualifications of integrity, honesty, sobriety, dependability, industry, thoroughness, accuracy, good judgment, initiative, resourcefulness, courtesy, ability to work cooperatively with others, willingness and ability to assume the responsibilities and to conform to the conditions of work characteristic of the employment, and a state of health, consistent with the ability to perform the assigned duties of the class. Where the position requires the driving of an automobile, the employee must have a valid state driver's license, a good driving record and is expected to drive the car safely. The foregoing general qualifications shall be deemed to be a part of the personal characteristics of the minimum qualifications of each class specification and need not be spe-- cifically set forth therein. The board may prescribe alternative or additional qualifications for individual classes and such shall be made a part of the class specifications.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18931 and 18935, Government Code.

HISTORY

1. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 72, No. 39.

2. Amendment filed 11-20-87; operative 12-20-87 (Register 87, No. 48).

§172.1. Waiver of Additional Special Personal Characteristics.

Note • History

An alternative or additional special personal characteristic stated in the specification for an individual class may, upon the recommendation of the State Medical Officer, be waived for a “subject to proper placement” eligible for a specific position within the class wherein such waiver would not affect the satisfactory performance of the duties assigned to the specific position. Incumbents with “subject to proper placement” status may not transfer to another position within the class without a reevaluation of the incumbent's medical capabilities in relation to the new position. (Persons who are “subject to proper placement” have completed the medical examination; however, they have certain medical conditions that may hazardously conflict with the job duties or the performance required of most, but not all, positions within the classification.)

NOTE

Reference: Sections 18930 and 19253.5, Government Code.

HISTORY

1. New section filed 4-14-77; effective thirtieth day thereafter (Register 77, No. 16).

§172.2. Citizenship. [Repealed]

History

HISTORY

1. New section filed 12-24-57; effective thirtieth day thereafter (Register 58, No. 1).

2. Amendment filed 11-22-68 as an emergency; effective upon filing. Certificate of Compliance included (Register 68, No. 44).

3. Repealer filed 11-1-72; effective thirtieth day thereafter (Register 72, No. 45).

§172.3. Medical Examinations During Employment.

Note • History

In accordance with Government Code Section 19253.5, the appointing power may require an employee to submit to a medical examination.

NOTE

Reference: Section 19253.5, Government Code.

HISTORY

1. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 67, No. 37.

§172.4. Definition of Psychological Screening.

Note • History

Psychological screening is the mandatory pre-employment assessment of the psychological fitness of candidates for appointment as peace officers including peace officers in either a youth or adult correctional facility.

NOTE

Authority cited: Sections 18211, 18213 and 18701, Government Code. Reference: Sections 1031(f) and 18931, Government Code; and Section 13601(a), Penal Code.

HISTORY

1. New section filed 2-22-88; operative 3-23-88 (Register 88, No. 10).

2. Amendment of section and Note filed 4-19-2005; operative 4-19-2005. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 2005, No. 16).

§172.5. Definition of Qualified Professional.

Note • History

A qualified professional shall meet the criteria set forth in Government Code Section 1031, subdivision (f).

NOTE

Authority cited: Sections 18211, 18213 and 18701, Government Code. Reference: Section 1031(f), Government Code; and Section 13601(a), Penal Code.

HISTORY

1. New section filed 2-22-88; operative 3-23-88 (Register 88, No. 10). For history of former section 172.5, see Register 72, No. 28.

2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

3. Amendment of section and Note filed 4-19-2005; operative 4-19-2005. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 2005, No. 16).

§172.6. Responsibility for Psychological Screening.

Note • History

The Board shall psychologically screen candidates for peace officer classifications, unless the Board delegates to an appointing power the authority to conduct psychological screenings in accordance with this regulation. No appointing power shall conduct any psychological screenings without prior Board authorization, except as otherwise authorized by law. Any request for authorization must be submitted in writing to the Board. An appointing power authorized by the Board to conduct psychological screening shall do so in accordance with the procedures defined in Sections 172.7, 172.8, 172.9, 172.10, and 172.11.

NOTE

Authority cited: Sections 18211, 18213 and 18701, Government Code. Reference: Section 18500, Government Code.

HISTORY

1. New section filed 2-22-88; operative 3-23-88 (Register 88, No. 10).

2. Amendment of section heading, section and Note filed 4-19-2005; operative 4-19-2005. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 2005, No. 16).

3. Amendment filed 1-12-2011; operative 2-11-2011 (Register 2011, No. 2).

§172.7. Standards and Procedures for Psychological Screening.

Note • History

The standards and procedures for conducting psychological screening shall be as follows:

(a) Minimum Psychological Standards. In order to be certified as a peace officer, a candidate must be found to be free from any job relevant psychological, emotional or mental traits, characteristics, or conditions that might adversely affect the performance of the duties and powers of a peace officer.

(b) Psychological Tests. Each candidate shall take a minimum of two written psychological tests (inventories) consistent with the requirements of the Commission on Peace Officer Standards and Training (POST).

(c) Evaluation Interview. Each candidate shall have a face-to-face evaluation interview conducted by a qualified professional as defined in Section 172.5 and selected by the Board's Chief Psychologist. With respect to each candidate, the interviewing qualified professional shall have prior access to all psychological screening tests and questionnaire data, summaries of available prior screening reports, summaries of available prior mental health evaluation/treatment records and salient medical records, and a summary of the appointing power's background investigation report.

(d) Report of Findings. The interviewing qualified professional shall submit to the Board's Chief Psychologist a recommendation as to whether the candidate meets the minimum psychological standards for appointment as a peace officer, together with a detailed report of findings and opinions that explain and support the recommended decision.

(e) Screening Determination. The Board's Chief Psychologist shall determine whether candidates should be certified as meeting the psychological standards for appointment as peace officers, subject to the right of appeal to the Board. In determining whether a candidate meets the psychological standards for appointment as a peace officer, the Board's Chief Psychologist shall consider the qualified professional's report of findings, written psychological test data, and substantiating behavioral evidence derived from one or more of the following sources: prior evaluation and/or treatment records; background investigation or other information collected by the appointing power or the Board; the candidate's self-report of personal history; and behavior manifested in the evaluation interview.

NOTE

Authority cited: Sections 18211, 18213 and 18701, Government Code. Reference: Sections 1031(f)-(g) and 18931, Government Code; and Sections 13503, 13506, 13510, 13510.5 and 13601(a), Penal Code.

HISTORY

1. New section filed 2-28-88; operative 3-23-88 (Register 88, No. 10).

2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

3. Repealer of former section 172.7 and renumbering of former section 172.8 to section 172.7, including amendment of section and Note, filed 4-19-2005; operative 4-19-2005. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 2005, No. 16).

4. Amendment filed 1-12-2011; operative 2-11-2011 (Register 2011, No. 2).

§172.8. Psychological Screening Withhold from Certification.

Note • History

The Board shall withhold or withdraw from certification, prior to appointment, any candidate who does not meet the minimum psychological standards as defined in Section 172.7(a).

NOTE

Authority cited: Sections 18211, 18213 and 18701, Government Code. Reference: Section 18935, Government Code.

HISTORY

1. New section filed 2-28-88; operative 3-23-88 (Register 88, No. 10).

2. Change without regulatory effect amending subsections (1) and (3) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

3. Renumbering of former section 172.8 to section 172.7 and renumbering of former section 172.9 to section 172.8, including amendment of section and Note, filed 4-19-2005; operative 4-19-2005. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 2005, No. 16).

4. Amendment filed 1-12-2011; operative 2-11-2011 (Register 2011, No. 2).

§172.9. Dispute Resolution.

Note • History

Candidates disqualified in the psychological screening process may dispute the decision utilizing the following Dispute Resolution Process.

(a) Prior to a final determination by the Board to withhold a candidate from certification based upon the Chief Psychologist's decision to accept the Report of Findings disqualifying the candidate from consideration, the Psychological Screening Program shall mail to the candidate:

(1) A letter of disqualification with instructions for disputing the decision, including information relative to obtaining an evaluation from one outside qualified professional; and

(2) A release form to be signed by:

(A) The candidate authorizing the Board to release the candidate's psychological screening records to the candidate's outside qualified professional; and

(B) The outside qualified professional certifying that licensure requirements are met pursuant to section 172.5.

(3) Failure to return the authorization signed by the candidate within 10 working days prior to the conclusion of the 90 day time frame in subdivision (b) shall result in the closing of the Dispute Resolution Process and a final determination that the candidate will be withheld from certification in meeting the minimum psychological standards for appointment as a peace officer.

(b) Within 90 calendar days of the date of disqualification, the outside qualified professional shall submit a signed written report stating an opinion as to whether the candidate meets the minimum psychological standards for appointment as a peace officer as provided in section 172.7, together with the documentation of findings that explain and support that opinion.

(c) The candidate's dispute shall be closed if the outside qualified professional fails to submit a report within the 90 day timeframe, or where the outside qualified professional submits a negative report not recommending that the candidate meets the minimum psychological standards for appointment as a peace officer.

(d) The 90 day period for the outside qualified professional to submit a report may be extended based upon a showing of good cause.

(e) Upon timely receipt of a positive report from the outside qualified professional recommending that the candidate meets the minimum psychological standards for appointment as a peace officer, the candidate's dispute shall be scheduled for review by the Chief Psychologist who will render one of the following decisions:

(1) Where the Chief Psychologist reverses the disqualification following the review, the candidate will be certified as meeting the minimum psychological standards for appointment as a peace officer, and the dispute will be closed; or

(2) Where the Chief Psychologist does not reverse the disqualification following the review, the decision of the Chief Psychologist as the Board's designee, to withhold certification of the candidate remains final unless and until an appeal is filed by the candidate pursuant to section 172.10.

NOTE

Authority cited: Sections 18211, 18213 and 18701, Government Code. Reference: Section 18670, Government Code.

HISTORY

1. New section filed 2-22-88; operative 3-23-88 (Register 88, No. 10).

2. Renumbering of former section 172.9 to section 172.8 and renumbering of former section 172.10 to section 172.9, including amendment of section and Note, filed 4-19-2005; operative 4-19-2005. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 2005, No. 16).

3. Amendment of section heading and repealer and new section filed 1-12-2011; operative 2-11-2011 (Register 2011, No. 2).

§172.10. Appeal of Psychological Screening Withhold.

Note • History

Candidates who have obtained a positive report from an outside qualified professional, but who are withheld from certification by the Board's designee, may file a written appeal with the Appeals Division. Any such appeal shall be filed within 30 days after the candidate is notified that he or she has been withheld from certification.

(a) Upon timely receipt of the appeal, an informal hearing shall be scheduled as provided in section 54.1.

NOTE

Authority cited: Sections 18211, 18213 and 18701, Government Code. Reference: Section 18670, Government Code.

HISTORY

1. New section filed 2-22-88; operative 3-23-88 (Register 88, No. 10).

2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

3. Renumbering of former section 172.10 to section 172.9 and renumbering of former section 172.11 to section 172.10, including amendment of section heading, section and Note, filed 4-19-2005; operative 4-19-2005. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 2005, No. 16).

4. Renumbering of former section 172.10 to section 172.11 and new section 172.10 filed 1-12-2011; operative 2-11-2011 (Register 2011, No. 2).

§172.11. Retention of Psychological Screening Records.

Note • History

The Board shall retain all psychological screening testing materials, written reports and related records for a minimum of five years. These records shall be the exclusive property of the Board. Confidentiality of these materials and related information shall be maintained consistent with laws governing the collection, maintenance, and release of medical and psychological information, including but not limited to the Information Practices Act of 1977 (Title 1.8 of Division Third, Part 4 of the Civil Code, commencing with Section 1798) and the Confidentiality of Medical Information Act (Part 2.6 of Division First of the Civil Code, commencing with Section 56).

NOTE

Authority cited: Sections 18211, 18213 and 18701, Government Code. Reference: Section 18931, Government Code.

HISTORY

1. New section filed 2-22-88; operative 3-23-88 (Register 88, No. 10).

2. Renumbering of former section 172.11 to section 172.10 filed 4-19-2005; operative 4-19-2005. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 2005, No. 16).

3. Renumbering of former section 172.11 to section 172.12 and renumbering of former section 172.10 to section 172.11, including amendment of section, filed 1-12-2011; operative 2-11-2011 (Register 2011, No. 2).

§172.12. Retention of Psychological Screening Testing Materials. [Renumbered]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18931, Government Code.

HISTORY

1. Renumbering of former section 172.11 (repealed) to section 172.12 filed 1-12-2011; operative 2-11-2011 (Register 2011, No. 2).

§173. Fee.

Note • History

There shall be no examination fee except that an applicant may be required to furnish certain medical examination information without expense to the state.

NOTE

Reference: Sections 18931 and 19261, Government Code.

HISTORY

1. Amendment filed 11-7-69; effective thirtieth day thereafter (Register 69, No. 45).

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§174. Applications.

Note • History

All applications must be filed at the place, within the time, in the manner, and on the form specified in the examination announcement. A separate application shall be filed for each examination unless otherwise specified in the examination announcement. All applications shall remain on file for at least two years and thereafter until ordered destroyed by the executive officer. Under no circumstances will applications for examinations in progress or examinations be returned to applicants. The names of applicants shall not be made public.

Filing an application “within the time” shall mean postmarked by the postal service or date stamped at one of the State Personnel Board offices (or the appropriate office of the agency administering the examination) by the date specified.

An application not postmarked or date stamped by the specified date shall be accepted under one of the following conditions:

(a) The application was delayed due to a verified error on the part of the staff of the State Personnel Board or other agency conducting the examination or through a documented administrative error by postal authorities.

(b) An application for an examination is submitted in error to the wrong State agency and was either postmarked by the postal service or date stamped by the agency to which addressed on or before the date specified.

(c) The employing agency verifies examination announcement distribution problems which prevented timely notification to an employee of a promotional examination. Posting in a centralized location of each branch, district, institution, region or office of the department shall constitute notification of an employee. The examination must be one in which the department would typically have competitors and receive announcements for internal distribution.

(d) The employing agency verifies that the applicant failed to receive timely notice of a promotional examination because the employee was away from his/her normal place of work during the entire examination publicity period due to work assignment, vacation, sick leave, or leave of absence. The examination must be one the employee would typically be expected to compete in.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18934, Government Code; Section 1602.31, Title 29, Chapter XIV, Code of Federal Regulations.

HISTORY

1. Amendment filed 9-15-53; effective thirtieth day thereafter (Register 53, No. 16).

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Amendment filed 5-6-81; effective thirtieth day thereafter (Register 81, No. 19).

4. Amendment filed 7-3-86; effective thirtieth day thereafter (Register 86, No. 27).

§174.6. Compilation of Ethnic, Sex and Disability Information.

Note • History

The executive officer may gather and maintain information regarding the success or failure of applicants by ethnic group, disability, and sex in State civil service examinations. Such information may be voluntarily provided by the applicant on a detachable section of the application.

NOTE

Authority cited: Section 18930, Government Code. Reference: Section 19705, Government Code.

HISTORY

1. New section filed 7-16-75; effective thirtieth day thereafter (Register 75, No. 29).

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Amendment filed 10-9-85; effective thirtieth day thereafter (Register 85, No. 42).

§174.7. Use of Ethnic, Sex and Disability Information.

Note • History

(a) Ethnic, sex and disability information shall not be used in a discriminatory manner in the selection process.

(b) Such information shall only be used for one or more of the following purposes:

(1) research and statistical analysis to assess the fairness of the selection process in regard to ethnicity, sex, and the disabled; or

(2) to provide a basis for corrective action when adverse effect is present, and

(3) to evaluate the State's affirmative action programs.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19702.1 and 19792, Government Code.

HISTORY

1. New section filed 7-16-75; effective thirtieth day thereafter (Register 75, No. 29).

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Amendment filed 8-29-79; effective thirtieth day thereafter (Register 79, No. 35).

4. Amendment filed 1-19-89; operative 2-18-89 (Register 89, No. 4).

5. Change without regulatory effect of subsection (b) pursuant to section 100, Title 1, California Code of Regulations filed 5-16-90 (Register 90, No. 22).

§174.8. Confidentiality of Ethnic, Sex and Disability Information.

Note • History

The executive officer shall implement procedures to insure that ethnic and sex information shall be accessible only to authorized persons. Ethnic and disability information on an individual applicant shall not be available to any member of an oral interview panel, performance testing panel, or the appointing power or the appointing power's representative prior to the offer of an appointment.

NOTE

Authority cited: Section 18930, Government Code. Reference: Section 19705, Government Code.

HISTORY

1. New section filed 7-16-75; effective thirtieth day thereafter (Register 75, No. 29).

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Amendment filed 10-9-85; effective thirtieth day thereafter (Register 85, No. 42).

§175. Authorization to Take Examination.

Each applicant shall be notified of the approval or disapproval of his application. The applicant's authorization to take the examination shall be in such form as may be prescribed by the executive officer.

§176. Questions Approved and Sealed.

Note • History

All examination questions shall be approved by the executive officer in advance of the examination. In transmitting material containing examination questions, each package thereof shall be securely sealed to be opened by the authorized agent of the executive officer prior to the examination. The correctness of the contents are to be verified and any discrepancies reported immediately. Security procedures prescribed by the executive officer are to be followed.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19680 and 19681, Government Code.

HISTORY

1. Amendment filed 7-13-79; effective thirtieth day thereafter (Register 79, No. 28).

§177. Explanations.

All necessary explanations will be made to the whole group taking the written examination and no question will be explained to any individual competitor. Examiners shall not make any comment that may assist any competitor to answer any question.

§178. Prohibited Acts.

Communication between competitors during examination is strictly forbidden; and competitors are forbidden to receive any unauthorized assistance in the examination. Before the commencement of an examination, competitors will be required to hand to the examiner any unauthorized printed or written matter in their possession that might serve to aid them in the examination. Evidence of copying or collusion may result in the cancellation of his examination and the debarment of the competitor from future state civil service examinations of any kind. Copies of the questions in the examination may not be made or taken from the examination room.

§179. Identity Concealed.

Note • History

Written examinations shall be so managed that the identity of any applicant shall be concealed from persons responsible for determining a passing score until all the examination papers shall have been marked, except in examinations in which the papers are scored objectively and both the key answers and the passing score have been predetermined.

NOTE

Authority cited: Sections 18930 and 19704, Government Code.

HISTORY

1. Amendment filed 3-9-59; effective thirtieth day thereafter (Register 59, No. 5).

2. Amendment filed 7-2-74; effective thirtieth day thereafter (Register 74, No. 27).

3. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§180. Prohibited Marks.

Note • History

Any competitor in any written examination who places any identifying mark upon an examination paper, other than as instructed by the examination proctor, may be deprived of all benefits under such examination.

NOTE

Reference: Sections 18930 and 19704, Government Code.

HISTORY

1. Amendment filed 7-2-74; effective thirtieth day thereafter (Register 74, No. 27).

2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§185. Rating of Written Examinations.

History

All examination papers shall be marked and graded under the direction of the executive officer and in accordance with the examination announcement. When, in the course of grading a competitor's papers, it becomes apparent that competitor would receive a general average percentage less than the minimum percentage for eligibility fixed by the executive officer or that competitor would receive less than the minimum percentage required on a given portion of the examination then the competitor shall be considered as having been disqualified and the marking of that competitor's papers need not be completed.

HISTORY

1. Originally published 3-22-45 (Title 2).

2. Revision filed 4-11-47 (Register 7).

3. Amendment filed 12-23-47 (Register 10, No. 8).

4. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§186. Inspection of Examination Papers.

History

Examination papers shall be open to inspection only as provided by these regulations.

HISTORY

1. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§187. Time for Inspection.

Note • History

Except as otherwise provided herein, upon written request filed in the office of the board within 60 days after notice of the result of their examinations have been mailed to them, competitors may compare their answer sheets with a scoring key at such location as may be designated by the executive officer for the purpose of determining whether their answers have been accurately scored. Such inspection shall be under supervision of a member of the staff or other authorized representative of the board. Answer sheets for copyrighted or standardized examinations may be excluded by the executive officer from such inspection.

NOTE

Reference: Section 18934, Government Code.

HISTORY

1. Amendment filed 9-15-53; effective thirtieth day thereafter (Register 53, No. 16).

2. Amendment filed 10-28-58; effective thirtieth day thereafter (Register 58, No. 20).

3. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§188. Who May Inspect.

Note • History

A competitor's examination papers shall be open to inspection only by: the competitor; the competitor's attorney upon written authorization of the competitor; or, with approval of the executive officer, the appointing power to whom the eligible has been certified.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18934, Government Code.

HISTORY

1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

2. Amendment filed 7-13-79; effective thirtieth day thereafter (Register 79, No. 28).

§189. Copying Prohibited.

History

Copying questions or answers contained in written examination papers, making erasures or alterations in the markings on the papers, or any mutilation thereof by any person is forbidden. Evidence that a competitor or the competitor's attorney has copied from, altered, or mutilated an examination paper may result in the competitor's debarment from competition in future examinations or the cancellation of the competitor's eligibility for employment in the state civil service, or both.

HISTORY

1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§190. Appeal from Written Examination.

History

During regular office hours in the seven calendar days beginning on the first working day after a written examination has been held and at any of the offices of the board or such other places as may be designated by the executive officer, any competitor may inspect a keyed copy of the questions in the competitor's examination for the express purpose of requesting review of such items as the competitor may believe are incorrectly or improperly keyed. Keyed copies of copyrighted or standardized examinations will not be available for review. The executive officer may also, for examinations given to fill urgent and immediate vacancies in the state service, provide that there will be no key inspection privileges. Notice of the suspension of this privilege shall be made a part of the written examination instructions given to each competitor at the time of the written examination. The competitor may, during the period of inspection provided above, file with the executive officer a written appeal from any part of the test, citing the item or items against which the appeal is directed and stating the reason for such appeal. The examination shall not be scored until all the disputed items have been reviewed and appropriate adjustment, if any, made by correction in the scoring key or elimination of the disputed items. In no event is the executive officer required to furnish keyed copies of questions of an essay or problem type when in executive officer's judgment such questions are not subject to scoring by an absolute standard.

In addition to the appeal hereinabove provided, a written appeal may be made from the result of the written examination on the grounds of fraud or clerical error in scoring the papers. Such appeal must be filed with the board within 60 days after notice of the result of the competitor's examination has been mailed to the competitor filing the appeal.

HISTORY

1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 10, No. 8.

§193. Formula Rating.

History

In any examination, the appraisal of education and experience of the competitors may be made by formula applied to the information and data given on their official applications. Such appraisal may be made without interview and without evaluating the personal qualifications of the competitors.

HISTORY

1. Amendment filed 4-15-58; effective thirtieth day thereafter (Register 58, No. 7).

§194. Rating by Interview.

History

In any examination the education, experience, and personal qualifications of competitors may be rated after a qualifications appraisal interview and such investigations as may be necessary.

The interview shall be conducted and the ratings made either by a qualifications appraisal panel of two or more members or by a single representative of the State Personnel Board. The representative of the State Personnel Board, either when acting alone or as a member of a panel, may be other than a staff member of the State Personnel Board. The executive officer shall determine the number of interviewers required to conduct each qualifications appraisal interview and shall select and appoint such interviewers.

HISTORY

1. Repealer of former Section 194 filed 4-15-58; effective thirtieth day thereafter. For history of former Section 194, see Register 56, No. 12. Former Section 195 renumbered 194 and amendment filed 4-15-58; effective thirtieth day thereafter (Register 58, No. 7).

2. Amendment filed 2-9-60; effective thirtieth day thereafter (Register 60, No. 4).

§195. Conduct of Interviews.

History

Qualifications appraisal interviews for an examination shall be conducted by the same interviewer or qualifications appraisal panel, except that if the executive officer finds that the needs of the state service require or it is necessary in order to fill urgent and immediate vacancies in the state service the executive officer may appoint more than one interviewer or qualifications appraisal panel to conduct interviews simultaneously or in different locations. If one or more of the members of the qualifications appraisal panel is not present during all or part of the proceedings the panel may nevertheless proceed. The executive officer or chairperson may fill any vacancy by appointment of a qualified person.

HISTORY

1. New section filed 4-15-58; effective thirtieth day thereafter. Former section renumbered 194 (Register 58, No. 7).

2. Amendment filed 2-9-60; effective thirtieth day thereafter (Register 60, No. 4).

3. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§196. Composition of Panels.

History

Each qualifications appraisal panel shall include a representative of the State Personnel Board who shall be the chairman and, except when the executive officer finds that the State's interest will not benefit therefrom:

(a) One or more persons within the state service, preferably from the agency or agencies for which the employment list is being established, who are familiar with the job requirements of the class for which the examination is being held; and

(b) One or more citizens not in the state service.

HISTORY

1. Amendment filed 12-23-47; effective thirtieth day thereafter (Register 10, No. 8).

2. Amendment filed 9-11-50; effective thirtieth day thereafter (Register 21, No. 6).

3. Repealer and new section filed 4-15-58; effective thirtieth day thereafter (Register 58, No. 7).

4. Amendment filed 2-9-60; effective thirtieth day thereafter (Register 60, No. 4).

§197. Prohibited Membership.

History

No member of the State Personnel Board may serve as a member of any qualifications appraisal panel unless that board member is the appointing power or a member of the governing body of the agency for the use of which the resulting employment list is to be established, and then only upon previous approval by the State Personnel Board.

HISTORY

1. Amendment filed 12-23-47; effective thirtieth day thereafter (Register 10, No. 8).

2. Amendment filed 2-9-60; effective thirtieth day thereafter (Register 60, No. 4).

3. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§197.5. Disqualification of Interviewer, Rater or Administrator Related to Competitor.

Note • History

When, in the course of an examination:

(a) A competitor appears before an oral examination panel, and that competitor is related by blood, or by adoption, or is or was related by marriage or is or was a cohabitant with any interviewer, it shall be the duty of the interviewer to disqualify him/herself from the interview with that particular competitor and shall not be present during the interview, or during any discussion about, or rating of, the competitor. The absence of the interviewer shall be recorded on the rating sheet of the competitor. The interview may proceed with a single interviewer. If the chairperson is disqualified from interviewing a particular competitor the chairperson shall designate a remaining panel member as the State Personnel Board representative for the interview, discussion, and rating of that competitor if the designated chairperson is a board certified chairperson.

(b) Anyone directly involved in the development or administration of any phase of an examination and a competitor are related by blood, or by adoption, or are, or were related by marriage or are or were cohabitants:

(1) The rater shall disqualify him/herself from rating the applicant, or

(2) shall not participate in any phase of the administration of that particular examination.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18930, Government Code.

HISTORY

1. New section filed 7-10-56; effective thirtieth day thereafter (Register 56, No. 13).

2. Amendment filed 4-15-58; effective thirtieth day thereafter (Register 58, No. 7).

3. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

4. Amendment file 3-9-87; effective thirtieth day thereafter (Register 87, No. 11).

§198. Competitive Ratings.

History

Ratings of education, experience, and personal qualifications shall be made on a competitive basis in that each competitor shall be rated thereon in relation to the minimum qualifications for the class in question and in relation to the comparable qualifications of other competitors. The term “personal qualifications” includes all such personality traits and personal, moral, and physical characteristics as are necessarily comprehended by the minimum qualifications established for the class. When rating competitor's education and experience, interviewers shall consider the quality, length, and pertinence of such education and experience, and the degree to which competitor's total education and work histories represent suitable preparation for the work of the class.

HISTORY

1. Amendment filed 4-15-58; effective thirtieth day thereafter (Register 58, No. 7).

§199. Minimum Qualifying Ratings.

Note • History

In qualifications appraisal interviews, ratings accorded competitors shall all be expressed in percentages, with 70 percent being the minimum qualifying rating, or shall all be expressed as qualified or eliminated without the assignment of percentage ratings. For each examination the executive officer shall determine whether percentage ratings or ratings of qualified or eliminated shall be used. Ratings shall be made independently by each interviewer either before or after discussion with other interviewers if there is a panel interviewing the candidate. Ratings shall be made on forms prescribed by the executive officer, which shall be signed by the interviewer.

A competitor shall be eliminated only if a majority of the members of the qualifications appraisal panel assign the competitor ratings below 70 percent or ratings of “eliminated.”

When the ratings are expressed in percentages, the ratings of the several members of a qualifications appraisal panel shall be averaged to determine each competitor's final rating on education, experience, and personal qualifications, except that, if the average rating is below 70 percent but there is not a majority of the members who assign ratings below 70 percent, the competitor shall be given a rating of 70 percent, and except that, if a majority of the members assign a rating below 70 percent, the competitor shall be eliminated regardless of the fact that competitor's average rating may be 70 percent or more.

NOTE

Reference: Sections 18930 and 18936, Government Code.

HISTORY

1. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 64, No. 15.

§199.1. Alternate Ratings.

Note • History

When the only reason for the elimination of a competitor by an oral interview panel is the competitor's failure to possess the minimum education or experience qualifications established for the class or possession of required licenses or certificates, the panel shall, in addition to the procedure described in Section 199, make an alternate rating as though the candidate possessed such qualifications, which rating shall be not less than 70 percent. If the competitor appeals the elimination and the board grants that appeal, the competitor's rating shall be the alternate rating. The alternate rating assigned under the provisions of this section is confidential and may not be revealed to the competitor or the board until the board grants an appeal and orders that the alternate rating be used.

NOTE

Authority cited: Section 18930, Government Code. Reference: Section 18930, Government Code.

HISTORY

1. New section filed 11-21-61; effective thirtieth day thereafter (Register 61, No. 23).

2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Amendment filed 10-9-85; effective thirtieth day thereafter (Register 85, No. 42).

4. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§200. Reports on Promotional Competitors.

History

In any promotional examination, the executive officer may establish procedures for furnishing qualifications appraisal interviewers with reports concerning the performance of competitors.

HISTORY

1. Repealer and new section filed 4-15-58; effective thirtieth day thereafter (Register 58, No. 7).

2. Amendment filed 2-9-60; effective thirtieth day thereafter (Register 60, No. 4).

3. Amendment filed 4-26-60; effective thirtieth day thereafter (Register 60, No. 10).

§201. Special Inquiry.

Note • History

In any examination, the executive officer may make special inquiry into the past records of competitors and shall disqualify any whose records or reputations shall in the executive officer's judgment warrant such action.

NOTE

Reference: Sections 18930 and 18935, Government Code.

HISTORY

1. Amendment filed 11-23-59; effective thirtieth day thereafter (Register 59, No. 20).

2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§202. Appeal from Qualifications Appraisal Panel.

Note • History

(a) In examinations with two or more weighted portions, within 30 days after the notice of the result of the examination has been mailed, a competitor disqualified by a qualifications appraisal panel may appeal to the State Personnel Board to review that competitor's rating on the grounds that it was the result of failure to follow prescribed rating standards or procedures, or of erroneous interpretation or application of the minimum qualifications prescribed for the class, or that it was the result of fraud, or of discrimination within the meaning of Sections 19702 or 19703 of the Government Code, or of other improper acts or circumstances. The appeal shall be in writing and shall state the facts, information, or circumstances upon which the appeal is based.

(b) In considering an appeal filed under subsection (a), the board shall:

(1) Sustain the rating; or,

(2) Grant the appeal and give a rating of 70 percent on education, experience, and personal qualifications; or,

(3) If it determines that the rating was the result of fraud, or of discrimination within the meaning of Sections 19702 or 19703 of the Government Code, give the competitor such passing rating as it may decide, or cancel part or all of the interview ratings given by that panel, arrange for reexamination of the appellant and other affected competitors by a different panel, and withhold part or all of the eligible list from certification until the reexamination is completed; or,

(4) Where it finds the existence of extraordinary circumstances in the conduct of the interview that it determines warrants referral of the request for review of the rating either to the original or to a new qualifications appraisal panel, it may make this referral with such instructions as it deems appropriate for reconsideration of the competitor's rating. On completion of such reconsideration, the qualifications appraisal panel either shall recommend that the rating be sustained or shall recommend a revised rating for the competitor. Following such recommendation, the Board may sustain the original rating or it may give the competitor a rating of 70 percent or the revised rating recommended by the qualifications appraisal panel.

(c) In examinations where the qualifications appraisal panel is the only weighted portion, within 30 days after the notice of the result of the examination has been mailed, a competitor who received a rating below the rating required for placement on the list may appeal to the State Personnel Board to review that rating on the grounds that it was the result of failure to follow prescribed rating standards or procedures, or of erroneous interpretation or application of the minimum qualifications prescribed for the class, or that it was the result of fraud, or of discrimination within the meaning of Sections 19702 or 19703 of the Government Code, or of other improper acts or circumstances. The appeal shall be in writing and shall state the facts, information, or circumstances upon which the appeal is based.

(d) In considering an appeal filed under subsection (c), the board shall:

(1) Sustain the rating; or,

(2) Grant the appeal and give a rating equal to that of the lowest eligible on the list; or,

(4) Where it finds the existence of extraordinary circumstances in the conduct of the interview that it determines warrant referral of the request for review of the rating either to the original or to a new qualifications appraisal panel, it may make this referral with such instructions as it deems appropriate for reconsideration of the competitor's rating. On completion of such reconsideration, the qualifications appraisal panel either shall recommend that the rating be sustained or shall recommend a revised rating for the competitor. Following such recommendation, the board may sustain the original rating or it may give the competitor a rating equal to that of the lowest eligible on the list or the revised rating recommended by the qualifications appraisal panel.

NOTE

Reference: Section 18930, Government Code.

HISTORY

1. Amendment filed 11-16-70; effective thirtieth day thereafter (Register 70, No. 47). For prior history, see Register 65, No. 24.

2. Amendment filed 4-28-76; effective thirtieth day thereafter (Register 76, No. 18).

3. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

4. Change without regulatory affect amending subsections (b), (d) and (d)(4) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§203. Employee Development Appraisal.

History

In promotional examinations, the development and fitness of a competitor for performance of the duties of the promotional class may be rated through a process known as Employee Development Appraisal. Whenever this process is used, appraisal reports on each competitor shall be made by persons who know the competitor's work and development. A review committee shall be appointed by the executive officer. The review committee shall review all appraisal reports to insure uniform application of standards and completeness and accuracy of information. The review committee shall, after its review, determine a single rating for each competitor and transmit this rating to the executive officer. The executive officer shall establish all procedures and standards necessary to carry out the purpose of this rule.

HISTORY

1. New Sections 203 through 203.6 filed 5-14-57; effective thirtieth day thereafter (Register 57, No. 8).

2. Amendment filed 5-11-59; effective thirtieth day thereafter (Register 59, No. 8).

3. Amendment filed 12-26-74; effective thirtieth day thereafter (Register 74, No. 52).

4. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§203.1. Announcement to Employees.

History

In filing a request to the executive officer, for the use of employee development appraisal in a departmental or subdivisional promotional examination, an appointing authority shall indicate that an announcement of intent has been made to the employees.

HISTORY

1. Amendment filed 6-19-59; effective thirtieth day thereafter (Register 59, No. 10).

2. Amendment and repealer of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§203.2. Competitive Ratings.

History

Employee development appraisal shall be made on a competitive basis in that each competitor shall be rated on the probability of satisfactory performance in the promotional class and in relation to the probability of satisfactory performance by the other competitors.

HISTORY

1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§203.3. Minimum Qualifying Rating.

Ratings shall be expressed in percentages with 70 percent being the minimum qualifying rating.

§203.4. Classes to Which Applicable.

Employee development appraisal shall not be used in examinations for promotion to classes with a maximum salary of less than $530 a month.

§203.5. Appeal from Employee Development Appraisal Rating.

Note • History

(a) In examinations with two or more weighted portions, within 30 days after the notice of the result of the examination has been mailed, a competitor whose employee development appraisal rating was not qualifying may request a revision of that rating on the grounds that it was the result of failure to follow the prescribed rating standards or procedures, or of erroneous interpretation or application of minimum qualifications prescribed for the class, or that it was the result of fraud, or of discrimination within the meaning of Sections 19702 or 19703 of the Government Code, or of other improper acts or circumstances. The request shall be in writing and shall state the facts, information, or circumstances upon which the request is based.

(b) In considering an appeal filed under subsection (a), the Board shall:

(1) Sustain the rating; or,

(2) Grant the appeal and give a rating of 70 percent; or,

(3) If it determines that the rating was the result of fraud, or of discrimination within the meaning of Sections 19702 or 19703 of the Government Code, give the competitor such passing rating as it may decide, or cancel part or all of the ratings given, arrange for reexamination of the appellant and other affected competitors, and withhold part or all of the eligible list from certification until the reexamination is completed; or,

(4) Where it finds the existence of extraordinary circumstances in the conduct of the employee development appraisal process that it determines warrant referral of the request for review of the rating either to the original or to a new employee development appraisal rating committee, it may make this referral with such instructions as it deems appropriate for reconsideration of the competitor's rating. On completion of such reconsideration, the rating committee either shall recommend that the rating be sustained or shall recommend a revised rating for the competitor. Following such recommendation, the Board may sustain the original rating or it may give the competitor a rating of 70% or the revised rating recommended by the employee development appraisal rating committee.

(c) In examinations where the employee development appraisal rating is the only weighted portion of an examination, within 30 days after the notice of the result of the examination has been mailed, a competitor whose employee development appraisal rating was below that of the lowest eligible on the list may request a revision of that rating on the grounds that it was the result of failure to follow the prescribed rating standards or procedures, or of erroneous interpretation or application of minimum qualifications prescribed for the class, or that it was the result of fraud, or of discrimination within the meaning of Sections 19702 or 19703 of the Government Code, or of other improper acts or circumstances. The request shall be in writing and shall state the facts, information, or circumstances upon which the request is based.

(d) In considering an appeal filed under subsection (c), the Board shall:

(1) Sustain the rating; or,

(2) Grant the appeal and give a rating equal to that of the lowest eligible on the list; or,

(3) If it determines that the rating was the result of fraud, or of discrimination within the meaning of Sections 19702 or 19703 of the Government Code, give the competitor such passing rating as it may decide, or cancel part or all of the ratings given, arrange for reexamination of the appellant and other affected competitors, and withhold part or all of the eligible list from certification until the reexamination is completed; or,

(4) Where it finds the existence of extraordinary circumstances in the conduct of the employee development appraisal process that it determines warrant referral of the request for review of the rating either to the original or to a new employee development appraisal rating committee, it may make this referral with such instructions as it deems appropriate for reconsideration of the competitor's rating. On completion of such reconsideration, the rating committee either shall recommend that the rating be sustained or shall recommend a revised rating for the competitor. Following such recommendation, the Board may sustain the original rating or it may give the competitor a rating equal to that of the lowest eligible on the list or the revised rating recommended by the employee development appraisal rating committee.

NOTE

Reference Section 18930, Government Code.

HISTORY

1. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 76, No. 18.

§203.6. Limitation.

History

HISTORY

1. Repealer filed 5-11-59; effective thirtieth day thereafter (Register 59, No. 8).

§203.7. Composition of Employee Development Appraisal Review Committee.

Note • History

Each employee development appraisal review committee shall include a representative of the State Personnel Board who is the chairperson and two or more additional persons from within state service. These committee members will be from the agency or agencies for which the employment list is being established and will be familiar with the job requirements of the class for which the examination is being held. If, however, the executive officer determines that the interests of the state would be better served in an individual examination by having only one state service representative or by adding an additional committee member from outside state service, the executive officer may modify the composition of the committee accordingly.

NOTE

Reference Section 18930, Government Code.

HISTORY

1. New section filed 12-26-74; effective thirtieth day thereafter (Register 74, No. 52).

2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§205. Computing Examination Score.

Note • History

All percentage ratings derived from the various parts of an examination shall be rounded to the second decimal place and considered accurate to that degree for the purpose of computing examination scores. Wherever minimum ratings are specified in these rules, they shall be considered binding to the second decimal place; that is, “70 percent” shall imply 70.00 percent, and “85 percent” shall imply 85.00 percent.

The weights assigned to the various parts of an examination represent the relative value of each part in the whole examination. The method of obtaining the average percentage of the examination is as follows: Multiply the rating obtained in each part by the relative weight of that part, add the products, and divide the sum of the products by the sum of the relative weights. The quotient thus obtained will be the average percentage for the examination. For the purpose of establishing employment lists, this average percentage shall be: (1) rounded to the second decimal place for examinations in which certification from the resulting employment list will be on the basis of the three highest names under Government Code Section 19057; or (2) rounded to the nearest whole number for examinations in which certification from the resulting employment list will be on the basis of the three highest ranks under Government Code Sections 19057.1, 19057.2 and 19057.3.

In an examination for a class in which certification of eligibles is on the basis of the three highest ranks, the ranking of eligibles on the resulting employment list shall be on the basis of scores rounded to the nearest whole percentage number. Upon request of an appointing power, the executive officer shall also provide an informational listing of the competitors' average percentage scores rounded to the second decimal place.

NOTE

Reference: Sections 18936, 19057, 19057.l, 19057.2 and 19057.3, Government Code.

HISTORY

1. Amendment filed 11-6-70 as an emergency; designated effective 11-23-70. Certificate of Compliance included (Register 70, No. 45). For prior history, see Register 58, No. 20.

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§206. Minimum Rating Required.

Note • History

Competitors shall be required to attain a score of not less than 70 percent in each part of the examination and a general average score of not less than 70 percent in order to qualify in an examination; except that, in a promotional examination, it is within the discretion of the executive officer to require a higher general minimum average, which minimum shall in no case exceed 85 percent. In written tests, the 70 percent used to represent the minimum score need not be the arithmetic 70 percent of the total possible score but may be an adjusted score based on a consideration of the difficulty of the test, the quality of the competition, and the needs of the service. Any such adjusted score shall be established before the identification of the competitors' examination papers.

NOTE

Reference: Sections 18936 and 18937, Government Code.

HISTORY

1. New NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§207. Qualifying for Lower Class.

Note • History

When an examination is held for any given class and if there is also being held an examination for a lower class in the same series, it shall be within the discretion of the executive officer to pass a competitor for a place on the eligible list for the lower class if the competitor attains a passing score for the examination for the lower class but does not receive a passing score in the examination for the higher class in which he/she is competing.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18930, Government Code.

HISTORY

1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

2. Amendment filed 3-9-87; effective thirtieth day thereafter (Register 87, No. 11).

§208. Medical or Physical Requirements.

History

HISTORY

1. Repealer filed 12-23-47 (Register 10, No. 8).

§209. Notice of Examination Result.

Note • History

As soon as the scoring of an examination has been completed and the eligible list established, each competitor shall be notified in writing of the results of this examination. If the competitor is successful, this notice shall include the competitor's general average percentage and relative position upon the resulting employment list except when lists are merged under a program of continuous testing.

NOTE

Reference: Sections 18575 and 18939, Government Code.

HISTORY

1. Amendment filed 3-9-59; effective thirtieth day thereafter (Register 59, No. 5).

2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§210. Establishing List in Case of Tie.

Note • History

In an examination in which certification from the resulting employment list is on the basis of the three highest names, two or more competitors receiving the same percentage rating shall be placed on the list according to their respective percentage ratings attained in the chief essential of the examination; except that, if one of such competitors is a veteran, that competitor shall be given the preference if the examination is one in which veterans preference is granted. If the tie continues it shall be broken by lot.

NOTE

Reference: Sections 18973, 19057 and 19057.1, Government Code.

HISTORY

1. Amendment filed 11-6-70 as an emergency; designated effective 11-23-70. Certificate of Compliance included (Register 70, No. 45).

2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§211. Eligibility.

Note • History

If an employee is dismissed from state employment by adverse action or as a result of disciplinary proceedings, that dismissed employee shall not thereafter be permitted to take any state civil service examination or be certified from an eligible list to any position in the state service without the prior consent of the Executive Officer.

Dismissed employees' requests to participate in state civil service examinations shall be subject to the following:

(a) Requests must be filed with the Board at least five (5) working days prior to the final filing date of the examination(s) for which the dismissed employee wishes to apply.

(b) All requests shall be in writing and accompanied by a completed state examination application.

(c) Requests shall clearly identify the facts, circumstances, and reasons that support the dismissed employee's request to take the examination(s). The request, at a minimum, shall include the date of the dismissal, the reasons for the dismissal, and the reasons why the dismissed employee believes that he or she should be permitted to take the examination(s). The dismissed employee may also submit substantiation of corrected behavior, letters of recommendation, employment evaluations, and other materials and/or declarations to support the request.

(d) Requests will be reviewed on a case-by-case basis, taking into consideration the following factors:

1. The type of examination/classification for which the dismissed employee wishes to apply.

2. The circumstances/causes surrounding the dismissal and any restrictions that impact the request.

3. Any pattern of successful employment after the dismissal.

4. Confirmation/assurance of corrected and/or sustained improved behavior.

5. Acceptance of responsibility for past wrongful actions.

6. Demonstration of readiness to re-enter state service.

7. Information, in writing, from the dismissing department responding to the dismissed employee's request to participate in the examination(s).

8. Any other factor deemed relevant to the request, including those factors set forth in Government Code Section 18935.

No later than 30 days after receipt of the request, the Executive Officer shall determine whether to grant the dismissed employee permission to participate in the examination(s). If the Executive Officer determines that additional time is necessary in order to obtain relevant information he or she may extend the time for determination and notify the dismissed employee of the extension and the reasons therefor. If the Executive Officer determines that the information submitted by the dismissed employee so warrants, the Executive Officer may grant the dismissed employee a blanket waiver to apply for any examination for which the dismissed employee meets the minimum qualifications. The Executive Officer shall set forth his or her decision in writing. A dismissed employee may appeal to the Board from the Executive Officer's decision within 30 days after receipt of that decision.

NOTE

Authority cited: Sections 18211, 18213 and 18701, Government Code. Reference: Sections 18935 and 18941, Government Code.

HISTORY

1. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 76, No. 25.

2. Change without regulatory effect amending section filed 11-26-90 pursuant to section 100, title 1, California Code of Regulations (Register 91, No. 2).

3. Amendment of section and Note filed 2-24-2005; operative 2-24-2005. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 2005, No. 8).

§211.1. Limitations on Administrative Hearing or Medical Interpreter Certification for Non-Citizens.

Note • History

(a) All eligibility requirements contained herein shall be applied without regard to the race, creed, color, gender, religion, disability or national origin of the individual applying for the public benefit.

(b) Pursuant to Section 411 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, (Pub. L. No. 104-193 (PRWORA)), (8 U.S.C. §1621), and notwithstanding any other provision of this division, aliens who are not qualified aliens, nonimmigrant aliens under the Immigration and Nationality Act (INA) (8 U.S.C. §1101 et seq.), or aliens paroled into the United States under Section 212(d)(5) of the INA (8 U.S.C. §1182(d)(5)), for less than one year, are not eligible to receive Administrative Hearing or Medical Interpreter Certification as set forth in Government Code Section 11435.30 and 11435.35.

(c) A qualified alien is an alien who, at the time he or she applies for or renews certification, is, under Section 431(b) of the PWRORA (8 U.S.C. §1641(b)), any of the following:

(1) An alien lawfully admitted for permanent residence under the INA (8 U.S.C. §1101 et seq.).

(2) An alien who is granted asylum under Section 208 if the INA (8 U.S.C. §1158).

(3) A refugee who is admitted to the United States under Section 207 of the INA (8 U.S.C. §1157).

(4) An alien who is paroled into the United States under Section 212(d)(5) of the INA (8 U.S.C. §1182(d)(5)) for a period of at least one year.

(5) An alien whose deportation is being withheld under Section 243(h) of the INA (8 U.S.C. §1253(h)).

(6) An alien who is granted conditional entry pursuant to Section 203(a)(7) of the INA as in effect prior to April 1, 1980.

(7) An alien who, under Section 431(c)(1) of the PRWORA (8 U.S.C. §1641(c)(1)), meets all of the conditions of subparagraphs (A), (B), (C), and (D) below:

(B) In the opinion of the Attorney General of the United States, which opinion is not subject to review of any court, there is a substantial connection between such battery or cruelty and the need for the benefits to be provided.

(i) status as a spouse or child of a United States citizen pursuant to clause (ii), (iii), or (iv) of Section 204(a)(1)(A) of the INA (8 U.S.C. §1154(a)(1)(A)(ii), (iii) or (iv)),

(ii) classification pursuant to clause (ii) or (iii) of Section 204(a)(1)(B) of the INA (8 U.S.C. §1154(a)(1)(B)(ii) or (iii),

(iii) suspension of deportation and adjustment of status pursuant to Section 244(a)(3) of the INA (8 U.S.C. §1254(a)(3)), or

(iv) status as a spouse or child of a United States citizen pursuant to clause (i) of Section 204(a)(1)(A) of the INA (8 U.S.C. §1154(a)(1)(A)) or classification pursuant to clause (i) of Section 204(a)(1)(B) of the INA (8 U.S.C. §1154(a)(1)(B)).

(D) For the period for which benefits are sought, the individual responsible for the battery or cruelty does not reside in the same household or family eligibility unit as the individual subjected to the battery or cruelty.

(8) An alien who, under Section 431(c)(2) of the PRWORA (8 U.S.C. §1641(c)(2)), meets all of the conditions of subparagraphs (A), (B), (C), (D) and (E) below:

(B) The alien did not actively participate in such battery or cruelty.

(C) In the opinion of the Attorney General of the United States, which opinion is not subject to review of any court, there is a substantial connection between such battery or cruelty and the need for the benefits to be provided.

(D) The alien meets the requirements of subsection (b)(7)(c) above.

(E) For the period for which benefits are sought, the individual responsible for the battery or cruelty does not reside in the same household or family eligibility unit as the individuals subjected to the battery or cruelty.

(d) For purposes of this section, “nonimmigrant” is defined the same as in Section 101(a)(15) of the INA (8 U.S.C. §1101(a)(15)).

(e) For purposes of establishing eligibility for the Administrative Hearing or Medical Interpreter Certification, prior to examination all of the following must be met:

(1) The applicant must declare himself or herself to be a citizen of the United States or a qualified alien under subsection (c), a nonimmigrant alien under subsection (d), or an alien paroled into the United States for less than one year under Section 212(d)(5) of the INA (8 U.S.C. §1182(d)(5)). The alien shall declare that status through use of the “Statement of Citizenship, Alienage, and Immigration Status for State Public Benefits,” SPB Form 15.

(2) The applicant must present documents of a type acceptable to the Immigration and Naturalization Service (INS) which serve as reasonable evidence of the applicant's declared status. A fee receipt from the INS for replacement of a lost, stolen, or unreadable INS document is reasonable evidence of the alien's declared status.

(3) The applicant must complete and sign SPB Form 15.

(f)(1) Pursuant to Section 434 of the PRWORA (8 U.S.C. §1644), information regarding any applicant presenting the following documentation as reasonable evidence of the applicant's declared status under subsection (e)(2) shall be reported to the Immigration and Naturalization Service:

(A) The document presented indicates immigration status but does not include an alien registration or alien admission number.

(B) The document is suspected to be counterfeit or to have been altered.

(C) The document includes an alien registration number in the A60 000 000 (not yet issued) or A80 000 000 (illegal border crossing) series.

(D) The document is one of the following: an INS Form I-181b notification letter issued in connection with an INS Form I-181 Memorandum of Creation of Record of Permanent Residence, an Arrival-Departure Record (INS Form I-94) or a foreign passport stamped “PROCESSED FOR I-551, TEMPORARY EVIDENCE OF LAWFUL PERMANENT RESIDENCE” that INS issued more than one year before the date of application for the Administrative Hearing or Medical Interpreter Certification.

(2) Pursuant to Section 434 of the PRWORA (8 U.S.C. §1644), where the Cooperative Personnel Services, working on behalf of the State Personnel Board, reasonably believes that an alien is unlawfully in the State based on the failure of the alien to provide reasonable evidence of the alien's declared status, after an opportunity to do so, said alien shall be reported to the Immigration and Naturalization Service.

(g) Eligibility for Administrative Hearing or Medical Interpreter Certification is established where subsections (e)(1)-(3) are satisfied. Any alien who provides documentation specified under subsection (f)(1) shall be eligible for Administrative Hearing or Medical Interpreter Certification until and unless the Cooperative Personnel Services, working on behalf of the State Personnel Board, receives written confirmation from the Immigration and Naturalization Service that the alien is not eligible for Administrative Hearing or Medical Interpreter Certification.

(h) Any applicant who is denied eligibility to take the examination for Administrative Hearing or Medical Interpreter Certification under this Section is entitled to file an appeal with the State Personnel Board within 30 days after service of the denial notice on the candidate. The appeal must be in writing and must contain arguments and materials that support the applicant's appeal. The State Personnel Board may chose either an investigatory or evidentiary hearing to resolve the appeal. The State Personnel Board shall make the final decision on the appeal.

NOTE

Authority cited: Section 18701, Government Code. Reference: 8 U.S.C. §§1621, 1641 and 1642; Sections 11435.05 and 11435.35, Government Code; and Section 51.2 , CCR.

HISTORY

1. New section filed 9-29-97; operative 9-29-97. Submitted to OAL for printing only (Register 97, No. 40).

§212. Use of Out-of-Class Experience in Meeting Minimum Qualifications for an Examination.

Note • History

(a) Definition--Out-of-class experience is that work experience gained by the performance of duties outside the class concept of the employee's class of appointment.

Nothing in this part shall be deemed to condone or encourage the assignment by management or the performance of out-of-class work by an employee not authorized by law.

(b) Verification of out-of-class experience. An employee shall be eligible to receive credit for out-of-class experience in meeting the minimum qualifications for a civil service examination:

(1) When all of the following criteria are met:

(A) The employee shall submit a written request that the appointing authority, or his/her designee, certify that the employee accepted and performed duties assigned by the appointing authority that were not consistent with the employee's class of appointment. Requests shall not be made prior to performing out-of-class duties a minimum of 30 consecutive calendar days, nor later than one year after the ending date of the out-of-class duties.

(B) The appointing authority or his/her designee under whom the claimed out-of-class experience was gained shall document by a written statement the employee's request for certification of out-of-class experience. The department's statement shall include a description of the type and level of duties performed; a conclusion regarding whether the duties are or are not consistent with the employee's class of appointment and, if not consistent, an identification of the class to which such duties are appropriate; the beginning and ending dates of the out-of-class experience; the title of the examination for which the employee is applying, if applicable; and any further information required by the executive officer.

(C) The applicant shall attach a copy of the verification statement to the application form for any examination for which he/she is applying.

(D) The out-of-class experience shall not be used to progress from the trainee to the journey level in a class series or deep class at a rate faster than that permitted for persons appointed to such classes. If the employee's class of appointment has a transfer relationship, as defined by Section 433, to the class series or deep class in which out-of-class was gained and verified, and the out-of-class experience gained was at the trainee through journey level, the experience shall be credited for examination purposes on a cumulative basis starting at the level to which the employee could have transferred.

Where a promotional relationship, as defined in section (b) of Section 431, exists between the employee's class of appointment and the class series or deep class in which out-of-class experience is claimed and verified, the experience will be credited on a cumulative basis starting at the entry level of the class series or deep class.

For the purposes of this regulation:

A “class series” is any vertically related group of two or more classes in the same occupational specialty or program area but different in level of responsibility, which constitutes a primary promotional pattern for a specifically identifiable group of employees; and

A “deep class” is a class which has more than one salary range and where, by Board resolution, a salary range other than the lowest range of the class may be used for determining employee status.

(E) The out-of-class duties were performed for a minimum time period generally required to assume the full range of responsibilities of the class being claimed by the employee. Under this requirement, the minimum verifiable length of out-of-class experience is 30 consecutive calendar days.

(2) When an out-of-class verification for reimbursement obtained by the employee under Government Code Section 19818.16 indicates that the out-of-class experience is being verified also for the purpose of meeting the minimum qualifications for civil service examinations.

(c) Once out-of-class experience is credited under this section, such experience may be used for any other examination with a final filing date on or after the effective date of this section, without the need for reverification.

(d) All verification statements will remain on file with the department for audit purposes for a period not less than five years or until ordered destroyed by the executive officer.

(e) The employee may appeal to the board from the appointing authority's denial of a request for use of out-of-class experience for meeting minimum qualifications in an examination pursuant to Section 51.2.

NOTE

Authority cited: Sections 18701 and 19050.8, Government Code. Reference: Section 19050.8, Government Code.

HISTORY

1. New section filed 5-14-86; effective thirtieth day thereafter (Register 86, No. 20.)

2. Change without regulatory effect of subsection (b)(4) filed 12-21-88 (Register 89, No. 1).

3. Change without regulatory effect amending subsections (b)(2), (b)(4), (c) and (e) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

4. Amendment of subsection (b), including newly designated subsection (b)(1), renumbering of former subsections (b)(1)-(5) to (b)(1)(A)-(E), new subsection (b)(2), and amendment of subsections (b)(1)(A)-(B) and (d) filed 2-5-96; operative 3-6-96 (Register 96, No. 6).

§213. Preemployment Testing for Drug Usage.

Note • History

An appointing power may conduct drug testing of applicants for a class only when:

(a) The appointing power has documented the sensitivity of the class and the consequences of drug-related behavior by showing that:

(1) The duties involve a greater than normal level of trust for, responsibility for or impact on the health and safety of others, and

(2) errors in judgment, inattentiveness, or diminished coordination, dexterity or composure while performing the duties could clearly result in mistakes that would endanger the health and safety of others; and

(3) employees in these positions work with such independence that it cannot be safely assumed that mistakes such as those described in (2) could be prevented by a supervisor or another employee.

(b) The board concludes after a public hearing that the appointing power has adequately documented the sensitivity of the class and the consequences of drug-related behavior and that drug testing is, therefore, job related for the class; and

(c) As a result of (a) and (b) above, the board approves the inclusion of a requirement of drug testing in the minimum qualifications for the class.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18930, 18931 and 18935, Government Code.

HISTORY

1. New section filed 5-1-89; operative 5-31-89 (Register 89, No. 18).

2. Change without regulatory effect amending subsection (a)(3) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§213.1. Notice of Drug Testing in Examination Announcements.

Note • History

Any examination that includes drug testing as provided by Section 213 shall specify in the examination announcement the type of specimen to be collected and the consequences of failing the drug test.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18930, 18933 and 18950, Government Code.

HISTORY

1. New section filed 5-1-89; operative 5-31-89 (Register 89, No. 18).

2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§213.2. Drug Testing of Current Employees and Individuals Reinstating.

Note • History

An applicant or transferee to a class for which drug testing is required pursuant to Section 213 who is a current employee or a former permanent or probationary employee with a break in service as defined in Section 6.4 shall be subject to drug testing pursuant to Section 213, except that if such employee has a current appointment to a class for which drug testing is required pursuant to Section 213, he or she shall not be tested. A current or former employee subject to testing under this section is deemed to be an applicant for purposes of Sections 213.4, 213.5, and 213.6.

NOTE

Authority cited: Sections 18071, 19050.4 and 19140, Government Code. Reference: Sections 18930 and 19996.1, Government Code.

HISTORY

1. New section filed 5-1-89; operative 5-31-89 (Register 89, No. 18).

2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§213.3. Laboratories Authorized to Conduct Drug Testing.

Note • History

Drug test samples shall only be analyzed by:

(a) A Commercial laboratory meeting standards that are the same as those used by the Department of Health and Human Services (DHHS)/National Institute on Drug Abuse (NIDA) to certify laboratories engaged in urine drug testing for Federal agencies (Mandatory Guidelines for Federal Workplace Drug Testing Program, Federal Register, Vol. 53, No. 69); or those standards used by the College of American Pathologists (CAP) to accredit laboratories for forensic urine drug testing (Standards for Accreditation, Forensic Urine Drug Testing Laboratories, College of American Pathologists); and

(1) is capable of same site initial screening and confirmatory tests,

(2) utilizes FDA-approved immunoassay tests, and

(3) participates in a laboratory proficiency testing program; and

(b) A laboratory which is not a component organization of a State department.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18930, Government Code.

HISTORY

1. New section filed 5-1-89; operative 5-31-89 (Register 89, No. 18).

§213.4. Required Components for Drug Testing.

Note • History

Any drug testing or retesting procedure conducted pursuant to Sections 213 or 213.2 must be approved by the executive officer and shall include all of the following:

(a) The drug screening methodology to be used, which shall be a type of immunoassay, except that another method may be used if a department can demonstrate that it is equally reliable as immunoassay;

(b) The drugs to be tested which shall include at least the following drugs of abuse:

(1) Amphetamines and Methamphetamines

(2) Cocaine

(3) Marijuana/Cannabinoids (THC)

(4) Opiates (narcotics)

(5) Phencyclidine (PCP)

(d) An authorization to test form which shall include at least the following:

(1) A list of the specific drugs to be tested for, and a description of the consequences of failing the drug test as specified in Section 213.5;

(2) A signature block, to be signed by the applicant before the drug test begins, authorizing the test to proceed and authorizing the necessary disclosure of medical information pursuant to Section 213.4.

(3) A statement that applicants who decline to sign the form or decline to be tested will be disqualified from the examination.

(e) (1) A requirement that the applicant disclose on a form, separate from the authorization to test form, all drugs and other medications taken, whether prescribed or not, within the 14 days prior to testing. This information shall be examined only by the appointing power and only if the applicant has a positive confirmatory drug test, except that for purposes of administering Section 213.6, this information may be examined by the board and staff authorized to investigate and/or hear appeals.

(2) A requirement that the appointing power utilize a Medical Review Officer, who shall be a licensed physician with knowledge of substance abuse, to review and interpret positive results of confirmatory tests and the information submitted by the applicant pursuant to Section 213.4(e)(1), determine whether the result may have been caused for any medically acceptable reason, such as prescribed or over the counter medications, and report to the appointing power his/her opinion as to the cause of the positive drug test. In the process of making this decision, the Medical Review Officer may request the applicant to provide additional information regarding all drugs and other medications taken.

(f) Specimen chain of custody provisions which shall include at least the following:

(1) A procedure to assure that a valid specimen is acquired, the donor is properly identified, and that no tampering or mishandling of the specimen occurs from initial collection to final disposition.

(2) A written log in which is recorded the name, signature, time of receipt, and time of release of each person handling, testing or storing each specimen, or reporting test results.

(3) Collection of specimen samples in a clinical setting such as a laboratory collection station, doctor's office, hospital or clinic, or in another setting approved by the executive officer on the basis that it provides an equally secure and professional collection process.

(g) Procedure for confirmation of positive screening test results utilizing gas chromatography/mass spectrometry (GC/MS);

(h) Notices to the applicant which shall be written and based n the following:

(1) If the screening test result is negative, the test is concluded and the applicant has passed the drug test.

(2) If the necessary confirmatory test result is negative, the test is concluded and the applicant has passed the drug test.

(3) If both the screening test and the confirmatory test results are positive and the Medical Review Officer's opinion is that the positive test results are not because of prescribed or over the counter medication or for any other medically acceptable reasons, the applicant has failed the drug test.

(i) Specimen retention and retesting procedure which shall include at least the following:

(1) Retention of all confirmed positive specimens and related records by the testing laboratory in secure frozen storage for at least one year following the test or until all appeals or litigation are concluded, whichever is longer.

(2) Provisions for retesting of confirmed positive specimens by any laboratory authorized to conduct drug testing pursuant to Section 213.3, at the request of an applicant and at the applicant's expense, provided that the request is received within 30 days of notifying the applicant of his/her disqualification. Retesting shall correspond exactly with the initial testing methods and procedures.

(j) Provisions for maintaining the confidentiality of test results, which shall include at least the following:

(1) The results of any test conducted pursuant to Sections 213, 213.2 or 213.4(i)(2) shall be given only to the applicant who was tested, the appointing power or the executive officer, and cannot be revealed to any other party without the written authorization of the applicant except that for the purposes of administering (A) Section 213.5, the executive officer shall reveal a failed drug test to other State appointing powers who administer an examination for which drug testing is required and for which the individual is an applicant; or (B) Section 213.6, the executive officer may reveal a failed drug test and other relevant information to the board and staff authorized to investigate and/or hear appeals.

(2) The results of any test conducted pursuant to Section 213.2 shall not be used in any adverse action proceedings.

(3) The information disclosed by the applicant pursuant to Section 213.4(e)(1) shall be examined only the appointing power and only if the applicant has a positive confirmatory drug test, except that for purposes of administering Section 213.6, this information may be examined by the board and staff authorized to investigate and/or hear appeals.

(4) Drug test results which are positive shall be purged from all records one year from the date the drug test specimen is given except as follows:

(A) The retention period for drug test results which are positive for a drug as specified in Section 213.5(b) shall be ten years from the date the drug test specimen is given;

(B) If a disqualification from an examination as the result of a positive test is appealed or litigated, the drug test results shall be retained until the appeal or litigation is resolved.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18930, Government Code; and Section 56.20(c), Civil Code.

HISTORY

1. New section filed 5-1-89; operative 5-31-89 (Register 89, No. 18).

2. Change without regulatory effect amending opening sentence, subsections (d)(1)-(2), (e)(1)-(2), (i)(2)-(j)(3) and (j)(4)(A) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§213.5. Consequences of Drug Use.

Note • History

(a) Applicants who fail the drug test pursuant to Section 213.4 (h), will be disqualified from the examination in which they are competing and, except as provided by Section 213.5(e), shall not be eligible to take any State civil service examination for a class for which drug testing is required until one year has elapsed from the date the drug test specimen is given.

(b) Except as provided by Section 213.5(e), applicants who fail the drug test because of a drug for which possession would constitute a felony offense under the Uniform Controlled Substances Act (Health and Safety Code, division 10, beginning at 11000) shall not be eligible to take any State civil service examination for a peace officer class until ten years have elapsed from the date the drug test specimen is given.

(c) Any applicant for a State civil service examination for a peace officer class who discloses, or whose background investigation reveals, use of a drug for which possession would constitute a felony offense under the Uniform Controlled Substances Act (Health and Safety Code, division 10, beginning at 11000) subsequent to his or her eighteenth birthday and prior to his or her twenty-third birthday, shall be disqualified from the examination in which he or she is competing until 5 years have elapsed from the date of the disclosed or revealed use of the drug; and shall not be eligible to take any State civil service examination for a peace officer class until 5 years have elapsed from the date of the disclosed or revealed use. If any such disclosed or revealed use occurred on or after the applicant's twenty-third birthday, he or she shall be disqualified from the examination in which he or she is competing until 10 years have elapsed from the date of the disclosed or revealed use of the drug; and shall not be eligible to take any State civil service examination for a peace officer class until 10 years have elapsed from the date of the disclosed or revealed use. The disqualification period shall begin on the date that the drug was used, and not on the date that the drug use was disclosed or revealed.

(d) Any applicant for a State civil service examination for a peace officer class who is disqualified from the current examination for one of the causes specified in (c) may, upon petition and with the consent of the executive officer, be permitted to compete in the current examination and, if successful, remain on the eligible list. In acting on the request, the executive officer shall consider evidence submitted by the person of rehabilitation from drug abuse and/or extenuating circumstances regarding the drug use.

(e) Any applicant who is disqualified from taking any subsequent examination as specified in this section may, upon petition and with the consent of the executive officer, be permitted to take the specified examination. In acting on the petition, the executive officer shall consider evidence submitted by the person of rehabilitation from drug abuse and/or extenuating circumstances regarding the drug use.

Persons denied permission to take a subsequent examination within the specified one-, five-, and ten-year periods may appeal in writing to the board within 30 days of notification.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 1031, 18930 and 18935, Government Code; Sections 11000, 11007, 11054-58, 11350, 11356 and 11377 (California Uniform Controlled Substances Act), Health and Safety Code; and Federal Public Health and Welfare Code, Title 42, Chapter 126, Section 12114(b) (Americans with Disabilities Act of 1990).

HISTORY

1. New section filed 5-1-89; operative 5-31-89 (Register 89, No. 18).

2. Amendment of subsections (b) and (c) filed 3-22-90; operative 4-21-90 (Register 90, No. 15).

3. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

4. Amendment of subsections (a), (b), (e) and Note and new subsection (d) and relettering filed 1-4-93; operative 2-3-93 (Register 93, No. 2).

5. Amendment of section heading, subsections (c)-(e) and Note filed 12-15-99; operative 12-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 51).

§213.6. Appeal of a Disqualification Resulting from a Failed Drug Test or Background Investigation Report.

Note • History

(a) This section pertains to and outlines administrative appeal rights only. An applicant appealing under this section shall follow the procedures in Sections 51 through 54.2.

(b) An applicant disqualified as the result of failing the drug test may only appeal the disqualification on the grounds that the drug was obtained legally, or there has been a violation of test protocol or chain of custody procedures, or other irregularity that invalidates the test result. A disqualified applicant may have his/her drug test specimen retested at his/her own expense as provided in Section 213.4(i)(2) and include the results of the retesting in his/her appeal.

(c) An applicant disqualified or withheld from certification as a result of disclosure of drug use or whose background investigation reveals use of a drug pursuant to Section 213.5(c) may appeal the disqualification or the withholding from certification on any grounds allowable by law.

(d) an applicant who prevails upon appeal under this section will be restored to eligibility in the examination from which disqualified or restored to the eligible list from which withheld.

NOTE

Authority cited: Section 18701, Government Code. Reference: sections 18654, 18670, 18671, 19675 and 18930, Government Code.

HISTORY

1. New section filed 5-1-89; operative 5-31-89 (Register 89, No. 18).

2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§215.00. Demonstration Project: Examination for Managerial Classifications. [Renumbered]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19600 and 19607, Government Code.

HISTORY

1. New article 8 and section filed 9-12-95; operative 10-12-95 (Register 95, No. 37).

2. Renumbering of former section 215.00 to new section 549.50 filed 9-17-97; operative 9-17-97. Submitted to OAL for printing only pursuant to Government Code sections 18210, 18211 and 18213 (Register 97, No. 38).

§216. Demonstration Project; Health and Welfare Agency Data Center Examinations and Appointments. [Renumbered]

Note • History

NOTE

Authority cited: Section 19602, Government Code. Reference: Section 19602, Government Code.

HISTORY

1. New section filed 3-8-96; operative 3-8-96. Submitted to OAL for printing only (Register 96, No. 10).

2. Renumbering of former section 216 to new section 549.30 filed 3-10-97; operative 3-10-97. Submitted to OAL for printing only (Register 97, No.11).

§216.1. Health and Welfare Agency Data Center Demonstration Project Competitive Evaluations. [Renumbered]

Note • History

NOTE

Authority cited: Section 19602, Government Code. Reference: Section 19602, Government Code.

HISTORY

1. New section filed 3-8-96; operative 3-8-96. Submitted to OAL for printing only (Register 96, No. 10).

2. Renumbering of former section 216.1 to new section 549.31 filed 3-10-97; operative 3-10-97. Submitted to OAL for printing only (Register 97, No.11).

§216.2. Health and Welfare Agency Data Center Demonstration Project Notices of Examination Results. [Renumbered]

Note • History

NOTE

Authority cited: Section 19602, Government Code. Reference: Section 19602, Government Code.

HISTORY

1. New section filed 3-8-96; operative 3-8-96. Submitted to OAL for printing only (Register 96, No. 10).

2. Renumbering of former section 216.2 to new section 549.32 filed 3-10-97; operative 3-10-97. Submitted to OAL for printing only (Register 97, No.11).

Article 9. Promotion

For the general statutory provisions on this subject, refer to Section 18950 of the act and sections following.

§231. General Reference.

History

Promotional examinations are governed by the sections of this article and such sections in Article 8 as are applicable.

HISTORY

1. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§232. Examinations.

Note • History

Whenever the executive officer determines that the needs of the service require, the executive officer may announce and hold promotional examinations for purposes of establishing subdivisional, departmental, multidepartmental, and servicewide promotional lists, or any combination of them.

NOTE

Reference: Section 18533, Government Code.

HISTORY

1. Amendment filed 7-13-64; effective thirtieth day thereafter (Register 64, No. 15). For prior history, see Register 13, No. 11.

2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§233. Eligibility.

History

Promotional examinations shall be limited to employees who are designated under these sections as eligible to participate.

HISTORY

1. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§234. Promotional Examination Eligibility.

Note • History

(a) Except as otherwise provided by law or these regulations, or order of the executive officer, a current employee in an agency or subdivision designated as appropriate by the executive officer may compete in the promotional examination if the employee meets one of the following criteria:

(1) Has a permanent appointment.

(2) Has had a permanent appointment with no subsequent break in service by resignation, non-disability retirement or removal for cause.

(3) Is on temporary assignment or loan under Section 426 and has permanent civil service status in another agency.

(b) Not withstanding any other provision of law or rule, persons employed for two or more consecutive years by the Legislature who meet the provisions of Government Code Section 18990 or in nonelected exempt positions in the executive branch of government who meet the provisions of Government Code section 18992 may also compete in promotional examinations.

(c) Not withstanding any other provision of law, persons retired from the United States military, honorably discharged from active military duty with a service-connected disability, or honorably discharged from active duty as defined in Government Code section 18991, may compete in career executive assignment examinations.

(d) Only persons with current permanent civil service status or who previously had permanent status in the state civil service; or persons who meet the provisions of Government Code sections 18990, 18991, or 18992 may compete in career executive assignment examinations.

(e) Those individuals who resign while competing in a promotional examination and who reenter state service within six months with a permanent appointment may, with concurrence of the appointing power, resume competition in the examination in progress when it is possible to do so without requiring the rescheduling of an already completed part of the examination.

(f) This section will remain in effect until January 1, 2013, unless statutes are enacted before January 1, 2013, extending the sunset date of January 1, 2013, in Government Code sections 18546, 18990, 18992, and 19889.3.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18950, 18990, 18991 and 18992, Government Code.

HISTORY

1. Amendment filed 7-3-73; effective thirtieth day thereafter (Register 73, No. 27). For prior history, see Register 60, No. 20.

2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Amendment filed 2-6-87; effective thirtieth day thereafter (Register 87, No. 6).

4. Change without regulatory effect amending subsections (a), (a)(3) and (d) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

5. Amendment of subsection (b), new subsection (c), subsection relettering, amendment of newly designated subsection (d), new subsection (f) and amendment of Note filed 9-1-2010; operative 10-1-2010. Amendment exempt from the Administrative Procedure Act and OAL review pursuant to Government Code section 18211. Submitted to OAL for filing with the Secretary of State and printing in the CCR pursuant to Government Code section 11343.8 (Register 2010, No. 36).

If Government Code sections 18546, 18990, 18992, and 19889.3

sunset on January 1, 2013, this section shall read:

§234. Promotional Examination Eligibility. [Provisionally effective January 1, 2013]

Note • History

(1) Has a permanent appointment.

(2) Has had a permanent appointment with no subsequent break in service by resignation, non-disability retirement, or removal for cause.

(3) Is on temporary assignment or loan under Section 426 and has permanent civil service status in another agency.

(b) Persons employed by the legislature who meet the provisions of Government Code section 18990 or in nonelected exempt positions in the executive branch of government who meet the provisions of Government Code section 18992 may also compete in promotional examinations.

(d) Only persons with current permanent civil service status or persons who meet the provisions of Government Code sections 18990, 18991, and 18992 may compete in career executive assignment examinations.

(f) This section shall become operative on January 1, 2013.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18950, 18990, 18991 and 18992, Government Code.

HISTORY

1. Amendment filed 7-3-73; effective thirtieth day thereafter (Register 73, No. 27). For prior history, see Register 60, No. 20.

2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Amendment filed 2-6-87; effective thirtieth day thereafter (Register 87, No. 6).

4. Change without regulatory effect amending subsections (a), (a)(3) and (d) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

5. Provisional version of section contingent upon sunset of Government Code sections 18546, 18990, 18992 and 19889.3 filed 9-1-2010; operative 10-1-2010. Amendment exempt from the Administrative Procedure Act and OAL review pursuant to Government Code section 18211. Submitted to OAL for filing with the Secretary of State and printing in the CCR pursuant to Government Code section 11343.8 (Register 2010, No. 36).

§235. Eligibility of Employees Who Have Moved to Another Agency.

Note • History

An employee who has moved from one agency or subdivision to another agency or subdivision without a break in service may participate, if otherwise eligible, in the promotional examination for the agency or subdivision from which that employee moved while employed (a) under probationary status, limited-term appointment, or temporary authorization until that employee first attains permanent status in the new agency or subdivision of (b) under an exempt appointment until that employee no longer has a right to return to civil service status under Government Code Section 19141 or (c) under a training assignment conforming to the provisions of Government Code Section 19050.8 or (d) under a Career Executive Assignment.

If a promotional examination is being held for an agency or subdivision to establish an employment list for an administrative, professional or technical class, an employee of another agency or subdivision who is otherwise eligible may participate if that employee had promotional eligibility in the designated agency or subdivision at any time within three years of the date of examination and has had no subsequent break in state service by resignation, nondisability retirement or removal for cause.

The executive officer in keeping with the needs of the service may permit other employees who are otherwise eligible under these regulations to participate in a promotional examination being held for an agency or subdivision in which the employees previously had permanent or probationary status.

NOTE

Reference: Section 18950, Government Code.

HISTORY

1. Amendment filed 11-20-70; effective thirtieth day thereafter (Register 70, No. 47). For prior history, see Register 62, No. 3.

2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§235.2. Eligibility--Other Persons.

Note • History

A person who is on a leave of absence or whose name appears on a reemployment list may participate in a promotional examination if immediately preceding leave of absence or layoff that person had appropriate civil service status for the examination as required by these regulations.

NOTE

Reference Section 18950, Government Code.

HISTORY

1. New section filed 11-25-53; effective thirtieth day thereafter (Register 53, No. 21).

2. Amendment filed 11-23-59; effective thirtieth day thereafter (Register 59, No. 20).

3. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

4. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§236. Probationers. [Repealed]

History

HISTORY

1. Amendment filed 10-11-55; effective thirtieth day thereafter (Register 55, No. 15).

2. Repealer filed 3-9-59; effective thirtieth day thereafter (Register 59, No. 5).

§237. Qualifications.

Note • History

No employee may participate in a promotional examination unless that employee has the minimum education and experience qualifications and any license, certificate, or other evidence of fitness prescribed for the class for which the examination is given.

NOTE

Reference: Sections 18931 and 18933, Government Code.

HISTORY

1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§238. Performance Report. [Repealed]

History

HISTORY

1. Repealer filed 12-8-60; effective thirtieth day thereafter. Amendment deferring effective date to 4-1-61 filed 12-16-60 as an emergency (Register 60, No. 24). For prior history see Register 26, No. 1.

§239. Competing Promotionally in Open Examinations.

Whenever an open examination is held, the executive officer may permit qualified employees in specified state agencies or subdivisions thereof to compete in the examination on a promotional basis.

§240. Effect of Resignation on Promotional List Eligibility.

Note • History

An employee who resigns from State service shall relinquish any promotional list eligibility. If the employee's name appears on any promotional eligible list, it shall be thereafter withheld from certification.

If, within 6 months, the employee reenters State service with a permanent appointment, the employee shall upon application again be eligible for certification, from such list or lists as apply to the employee's new status.

Nothing in this shall preclude an employee who within 6 months reenters State service with a permanent appointment under a new hiring authority from making application for transfer of eligibility under Section 154 to the appropriate promotional list or lists, if any, of the new hiring authority.

If an employee who is competing in a promotional examination resigns on or before the date the eligible list is established, that employee shall not attain any promotional eligibility from such examination unless within 6 months the employee reenters State service with a permanent appointment and is permitted to resume competition in the examination according to the provisions of Section 234.

Notwithstanding the above provisions, persons who have resigned for reasons of disability retirement shall retain their eligibility for promotion and be certifiable for the duration of the eligible list life, subject to medical approval.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18950, Government Code.

HISTORY

1. Amendment and repealer of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 74, No. 27.

2. Amendment filed 7-13-79; effective thirtieth day thereafter (Register 79, No. 28).

3. Amendment filed 2-6-87; effective thirtieth day thereafter (Register 87, No. 6).

4. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§241. Limitation of Promotional Lists.

Note • History

(a) When an examination is to result in a promotional list the number of names to be placed on that list shall not be limited unless the announcement of the examination states:

(1) The number of names to be placed on the list originally.

(2) The length of time the list will remain in effect, unless it is exhausted sooner.

(3) The required general average score shall be 70%.

The executive officer shall increase the number of names placed on an eligible list beyond the number originally stated on the examination announcement as necessary to prevent the occurrence of inequity as the result of tied scores, and in order to permit placing on the list the name of any person who, as a result of deferred examination, correction of clerical error, or granting of appeal, attains a score at least equal to the score of a person included on the original list. The executive officer may extend the life of the list beyond the announced expiration date or the board, after a public hearing, may order the list abolished prior to that date.

(b) The executive officer may augment the names originally placed on an eligible list by one or more blocks of 10 candidates each, or all names if fewer than 10 remain, when:

(1) The original number of names will not meet the state's needs during the life of the list, and

(2) Qualified candidates can be obtained from those persons successful on the original examination but not on the original list, and

(3) Retesting is impractical for such reasons as inadequate number of new candidates, and insufficient time has elapsed for unsuccessful candidates to have improved their qualifications.

NOTE

Reference: Sections 18937 and 18950, Government Code.

HISTORY

1. Amendment filed 12-6-65; effective thirtieth day thereafter (Register 65, No. 24).

2. Amendment filed 9-7-71; effective thirtieth day thereafter (Register 71, No. 37).

3. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§242. Certification to Limited Term Positions. [Repealed]

History

HISTORY

1. Repealer filed 12-24-64; effective thirtieth day thereafter (Register 64, No. 26).

Article 10. Appointments

For the general statutory provisions on this subject, refer to Section 19050 of the Act and sections following.

§250. Requirement That Selection Be Based on Merit and Fitness.

Note • History

(a) Appointments to positions in the State civil service made from eligible lists in a manner consistent with provisions of Sections 254, 254.1, and 254.2 as related to the certification of eligibles, by way of transfer, as defined in Government Code Section 18525.3, or by way of reinstatement, as defined in Government Code Section 19140, shall be made on the basis of merit and fitness, defined exclusively as the consideration of each individual's job-related qualifications for a position, including his/her knowledge, skills, abilities, experience, education, training, physical and mental fitness, and any other personal characteristics relative to job requirements, as determined by candidate performance in selection procedures, including, but not limited to, hiring interviews, reference checks, background checks, and/or any other procedures, which assess job-related qualifications and are designed and administered to select those individuals who best meet the selection need.

(b) Eligible lists shall be created on the basis of merit and fitness, and, as such, shall result from: recruitment strategies designed to be as broad and inclusive as necessary to best meet the selection need; and candidate performance in selection procedures that assess job-related qualifications, are competitive in nature, are designed and administered to fairly and objectively identify those candidates who meet the selection need, and result in the ranking of candidates based on their job-related qualifications.

(c) Permanent status in permanent appointments to the civil service is achieved after completion of the required probationary period, the final phase of the selection process. Assessment of employee performance during the probationary period shall be made on the basis of merit and fitness, with regard to the individual's qualifications, including his/her knowledge, skills, abilities, experience, education, training, physical and mental fitness, and any other personal characteristics relative to job requirements, and his/her job-related performance.

(d) All phases of the selection process, including recruitment and examining, eligible list creation, appointment, and completion of the civil service probationary period, shall provide for the fair and equitable treatment of applicants and employees on an equal opportunity basis without regard to political affiliation, race, color, ancestry, national origin, sex, sexual orientation, religion, disability, medical condition, age, or marital status.

(e) Nothing herein shall be construed to relieve appointing powers from the obligation to reasonably accommodate individuals with disabilities as required under the Americans with Disabilities Act, the Fair Employment and Housing Act, and the Civil Service Act.

(f) Nothing herein shall be construed so as to contravene the intent and purpose of Article VII, Section 6, of the California Constitution, which provides for the granting of preferences in state civil service to veterans and their surviving spouses.

(g) Intra-departmental job assignment transfers within the same job classification, such as assignments to different work shifts or work locations, or time base changes pursuant to Section 277 do not constitute appointments for purposes of this regulation.

NOTE

Authority cited: Sections 18211 and 18701, Government Code. Reference: Article VII, Sections 1 and 6, California Constitution; Sections 18213, 18500, 18525.3, 18900, 18930, 18950, 18951, 18971-18979, 19050, 19052, 19140, 19171, 19173 and 19702.2, Government Code.

HISTORY

1. New section filed 5-17-2004; operative 5-17-2004. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 2004, No. 21).

§250.1. Skills-Based Certification.

Note • History

(a) Notwithstanding Section 250(a) and (b) as they pertain to eligible lists, appointments to positions in the State civil service for information technology classifications may utilize skills-based certification, as defined by Government Code section 18900.6(a). All such appointments shall be made on the basis of merit and fitness pursuant to all other provisions of Section 250.

(b) Examinations may be administered on an open basis, promotional basis, or open non-promotional basis.

(c) Selection procedures shall be competitive in nature, and designed and administered to fairly and objectively identify those candidates who meet the selection need for the position, and result in the certified ranking of candidates based on their job-related qualifications.

(d) Individuals who are successful in examinations for these classes shall be assigned a score relative to their job-related qualifications and placed in a pool for the respective class and skills set(s) tested for. For purposes of scoring, raw scores will be assigned.

(e) Whenever a vacancy is to be filled, the appointing power shall prepare a detailed statement of the duties and requirements of the position, which shall be maintained by the appointing power for audit purposes by the SPB. Such statement of duties and requirements of the position shall constitute the justification for creating a skills-based certification list for the position.

(f) Traditional eligible lists will not be created as a result of testing. Skills-based certification lists shall be created on a position-by-position basis, and shall replace the traditional eligible lists. A skills-based certification list shall be created by weighting the final score(s) of eligible competitors attained in the core examination, if applicable, and functional skills set(s). No more than four (4) skills sets, equaling a combined total of 100%, may be used when creating a certification list. A core examination component, if utilized in the testing process, may be used for purposes of creating a skills-based certification list. Its weighting shall be determined by a job analysis. Eligibles will be ranked on the certification list according to their test scores and the percentage weightings utilized to create the certification list.

For example, a skills-based certification list created utilizing two functional skills-sets, each weighted 50%, would yield a list of only those eligibles who successfully passed the test for each of the skills-sets and ranked in descending order based on their respective weight and functional skill set test scores.

(g) If it is found that the statement of duties and requirements of the position is inconsistent with the skills-sets utilized to create the certification list, the appointment shall be deemed illegal and voided.

(h) Hiring departments shall utilize a job-related structured interview process for purposes of conducting hiring interviews, and shall verify minimum qualifications and perform reference checks for all prospective hires. In order to ensure that the hiring process is fair and competitive, the hiring interviews shall use a job-related structured interview process that shall conform to the following minimum standards: (1) relevant criteria shall be developed for determining which candidates shall be selected to interview; (2) a series of job-related questions shall be developed to assess the fitness and qualifications of each candidate to perform the duties of the position in question; (3) valid criteria shall be developed for scoring the candidates' responses to the interview questions; and (4) each candidate shall be required to respond to the same interview questions. The appointing authority shall also develop a summary of the hiring process which shall include a discussion of the job-relatedness and structure of the interview process.

NOTE

Authority cited: Sections 18211, 18701 and 18900.6, Government Code. Reference: Section 18900.6, Government Code.

HISTORY

1. New section filed 6-1-2009; operative 7-1-2009. Submitted to OAL for filing and printing only pursuant to Government Code sections 18211 and 18213 (Register 2009, No. 23).

§251. Request for Certification.

Note • History

Whenever a vacancy is to be filled under Section 19052 of the act, the appointing power shall make written request for certification unless otherwise prescribed by the executive officer. Such request shall contain the statements required by the act and shall include a statement of the salary, tenure, and location of the position. Certification shall be made by the executive officer.

NOTE

Reference: Section 19052, Government Code.

HISTORY

1. Amendment filed 2-10-59; effective thirtieth day thereafter (Register 59, No. 3).

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§252. To Fill New Positions.

Whenever a new position is created, the appointing power shall notify the executive officer of the proposed new position and, at the same time, furnish a detailed statement of the duties and requirements of the proposed position.

§253. Certification to 60-Day Position.

History

Where the employment is for a period of 60 days or less, only the names of those eligibles who live in the vicinity of the employment need be certified.

HISTORY

1. Amendment filed 12-24-64; effective thirtieth day thereafter (Register 64, No. 26).

§254. Appointment Following Certification.

Note • History

For a class in which the certification of eligibles is under Government Code section 19057.1 and 19057.3, the appointing power shall fill a vacancy in a class by selection from the highest three eligibles certified who are willing to accept employment under the conditions of employment specified. If the appointing power has at the same time more than one vacancy in the same class, the first and every succeeding vacancy shall be filled in like manner by selection in turn from the highest three remaining names. For a class in which the certification of eligibles is under Government Code sections 19057.1, 19057.2 and 19057.3, the appointing power shall fill a vacancy in a class by selection from the eligibles in the three highest ranks certified who are willing to accept employment under the conditions of employment specified. If the appointing power has at the same time more than one vacancy in the same class, the first and every succeeding vacancy shall be filled in like manner by selection in turn from the eligibles in the highest three remaining ranks. The provisions of this rule do not apply if the certification is from a reemployment list under Government Code Section 19056.

NOTE

Reference: Sections 19056, 19057, 19057.1, 19057.2 and 19057.3, Government Code.

HISTORY

1. Amendment filed 12-24-64; effective thirtieth day thereafter (Register 64, No. 26).

2. Amendment filed 11-7-69; effective thirtieth day thereafter (Register 69, No. 45).

3. Amendment filed 11-6-70 as an emergency; designated effective 11-23-70. Certificate of Compliance included (Register 70, No. 45).

4. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

5. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§254.1. Designation of Classes as Professional, Scientific, Administrative, Management or Executive.

Note • History

For the purpose of administering Section 19057.1 of the Government Code, the executive officer shall designate those classes of positions which are considered to be professional, scientific, administrative, management, or executive and meet the definition in subsections (a) or (b) below.

(a) The work performed either involves supervision of employees as a primary duty; or,

(b) The work is predominantly intellectual and varied in character and requires the consistent exercise of discretion and judgment.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19057.1 and 19997.3, Government Code.

HISTORY

1. New section filed 11-6-70 as an emergency; designated effective 11-23-70. Certificate of Compliance included (Register 70, No. 45).

2. Amendment filed 11-8-72; effective thirtieth day thereafter (Register 72, No. 46).

3. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

4. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).

5. Amendment filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).

6. Change without regulatory effect amending subsection (b) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§254.2. Three Rank Certification.

Note • History

The number of names certified to an appointing power to fill vacancies as provided by Government Code Sections 19057.1, 19057.2 and 19057.3 shall, at the option of the appointing power, be one of the following:

(1) All eligibles in the highest three ranks; or

(2) Any specific eligible(s), identified by the appointing power, who is in one of the highest three ranks.

NOTE

Authority cited: Sections 18701, 19057.1, 19057.2 and 19057.3, Government Code. Reference: Sections 19057.1, 19057.2 and 19057.3, Government Code.

HISTORY

1. New section filed 1-19-89; operative 2-18-89 (Register 89, No. 4).

2. Change without regulatory effect pursuant to section 100, title 1, California Code of Regulations filed 5-16-90 (Register 90, No. 22).

3. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§255. Certification in Case of Waiver. [Repealed]

History

HISTORY

1. Repealer filed 12-24-64; effective thirtieth day thereafter (Register 64, No. 26).

§256. Certification to Laborers' Positions. [Repealed]

History

HISTORY

1. Repealer filed 12-24-64; effective thirtieth day thereafter (Register 64, No. 26).

§257. Cancellation of Request for Certification. [Repealed]

History

HISTORY

1. Repealer filed 2-10-59; effective thirtieth day thereafter (Register 59, No. 3).

§258. Reply to Inquiry Following Certification.

Note • History

It shall be the duty of every eligible to respond within a reasonable time to an inquiry to ascertain his interest in appointment to a position. An eligible does not need to respond when he or she is not interested in the position. The following standards shall constitute reasonable response time frames:

(1) Telephone: two business days' response time following the initial contact;

(2) Mail: six business days after the date the notice is sent;

(3) E-mail: six business days after the date the notice is sent.

If the eligible is unavailable for employment within 30 calendar days following the date of the job offer, the appointing power may consider this a waiver of appointment.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19050, Government Code.

HISTORY

1. Amendment filed 12-24-64; effective thirtieth day thereafter (Register 64, No. 26).

2. Repealer of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Amendment filed 7-13-79; effective thirtieth day thereafter (Register 79, No. 28).

4. Amendment filed 1-31-2012; operative 3-1-2012. Exempt from the Administrative Procedure Act pursuant to Government Code section 18211. Submitted to the Office of Administrative Law for filing and printing only pursuant to Government Code section 18214 (Register 2012, No. 5).

§259. Failure to Respond to Telegram. [Repealed]

History

HISTORY

1. Repealer filed 12-24-64; effective thirtieth day thereafter (Register 64, No. 26). For prior history see Register 10, No. 8.

§260. Failure to Respond.

Note • History

When the board, executive officer, or a state agency transmits to an eligible any communication concerning availability for any type of employment requiring an answer, if the eligible's response is not received within the time provided by Section 258, the eligible may not be considered for that vacancy and, in the case of certification, is a waiver of contact.

NOTE

Authority cited: Section 18930, Government Code. Reference: Section 18935, Government Code.

HISTORY

1. Amendment filed 12-24-64; effective thirtieth day thereafter (Register 64, No. 26).

2. Amendment and repealer of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Amendment filed 10-9-85; effective thirtieth day thereafter (Register 85, No. 42).

4. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

5. Amendment filed 1-31-2012; operative 3-1-2012. Exempt from the Administrative Procedure Act pursuant to Government Code section 18211. Submitted to the Office of Administrative Law for filing and printing only pursuant to Government Code section 18214 (Register 2012, No. 5).

§260.1. Decline a Job Offer or Failure to Appear for Work or Job Interview.

Note • History

In the case of certification, if the eligible declines a job offer, it is considered a waiver of appointment. If the eligible fails to appear for a job interview or work, the eligible's name will be placed on inactive status of the eligible list, and it is considered a waiver of appointment.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18935, Government Code.

HISTORY

1. New section filed 1-31-2012; operative 3-1-2012. Exempt from the Administrative Procedure Act pursuant to Government Code section 18211. Submitted to the Office of Administrative Law for filing and printing only pursuant to Government Code section 18214 (Register 2012, No. 5).

§261. Waiver of Certification.

Note • History

The executive officer may ascertain from each eligible the salary, tenure, location, and other pertinent conditions of employment under which the eligible will accept appointment. Such statement of acceptable conditions of employment shall constitute an automatic waiver of certification to positions having other conditions of employment. The conditions of employment acceptable to an eligible may at any time be changed at that eligible's written request; but, in such event, that eligible shall not be entitled to consideration for appointment to any position for which certification has already been forwarded to the appointing power.

NOTE

Reference: Section 19057, Government Code.

HISTORY

1. Amendment filed 2-10-59; effective thirtieth day thereafter (Register 59, No. 3).

2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§261.1. Waiver of Contact.

Note • History

If after being contacted to ascertain interest in a position an eligible is not interested, the eligible will not be considered for the vacancy, and, in the case of certification, the eligible is deemed to have waived contact for that certified list. An eligible is considered not interested when any of the following occur:

(1) Eligible fails to respond to a contact, or fails to respond in accordance with rule 258;

(2) Eligible responds to a contact as not interested;

(3) Eligible is either unavailable or declines to interview for a position;

(4) Eligible withdraws interest in a position at any time during the recruitment process to fill the vacancy.

Eligibles certified from any open list may decline an unlimited number of employment inquiries and hiring interview offers without penalty of being charged a waiver of appointment.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18935, Government Code.

HISTORY

§262. Waiver of Appointment.

Note • History

After three waivers of appointment to positions in any given class where the eligible's record was placed on a certification list in accordance with all applicable certification rules, that eligible's record shall not be certified for future vacancies.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18935, Government Code.

HISTORY

1. Amendment filed 12-24-64; effective thirtieth day thereafter (Register 64, No. 26). For prior history, see Register 10, No. 8.

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Amendment filed 3-9-87; effective thirtieth day thereafter (Register 87, No. 11).

4. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

5. Editorial correction of Authority cite (Register 95, No. 5).

6. Amendment filed 1-31-2012; operative 3-1-2012. Exempt from the Administrative Procedure Act pursuant to Government Code section 18211. Submitted to the Office of Administrative Law for filing and printing only pursuant to Government Code section 18214 (Register 2012, No. 5).

§263. Appointment Substantiation.

Note • History

The appointing power shall (1) immediately report each appointment to the executive officer, and (2) maintain an official employee file including the executed loyalty oath in the manner prescribed by the executive officer.

NOTE

Reference: Sections 3105 and 18153, Government Code.

HISTORY

1. Amendment filed 9-12-67; designated effective 11-8-67 (Register 67, No. 37).

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§264. Certification from Comparable List.

Note • History

If fewer than three names of persons willing to accept appointment are on the open eligible list for the class to which a position belongs and no other employment list for such class is available the executive officer may authorize certification of additional names from an employment list or lists for an appropriate class of substantially the same or a higher level.

NOTE

Reference: Section 19055, Government Code.

HISTORY

1. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 61, No. 5.

§265. Temporary Authorization.

Note • History

If fewer than three names of persons willing to accept appointment are on the open eligible list for the class to which a position belongs and no other employment list for such class is available the executive officer may authorize the appointing authority to make a temporary appointment.

NOTE

Reference: Sections 19057 and 19058, Government Code.

HISTORY

1. New section filed 3-7-61; effective thirtieth day thereafter (Register 60, No. 5).

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§266. Correction of Appointments.

Note • History

When the executive officer determines that an appointment is unlawful, the executive officer shall determine the good faith of the appointing power and the employee under Section 8 and shall take corrective action up to and including voiding the appointment, provided that:

(a) No corrective action shall be taken on any appointment which has been in effect for one year or longer if both the appointing power and the employee acted in good faith; and

(b) No corrective action shall be taken on any appointment which has been in effect for five years or longer unless:

(1) the employee acted in other than good faith; or

(2) the executive officer determines that the rights of another employee are significantly endangered by the retention of the appointment in question.

When an unlawful appointment is terminated or corrected, the employee who acted in good faith shall retain only the compensation as defined in Section 9. In all cases, compensation shall be corrected on a prospective basis.

The employee who acted in other than good faith shall reimburse all compensation resulting from the appointment. The board in reviewing cases on appeal may, based upon the evidence, provide for less than full reimbursement of compensation.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19257 and 19257.5, Government Code.

HISTORY

1. New section filed 1-18-82; effective thirtieth day thereafter (Register 82, No. 4).

2. Change without regulatory effect amending opening paragraph and subsection (b)(2) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§266.1. Remedial Measures.

Note • History

When the appointment of an employee who acted in good faith is being terminated pursuant to Section 266, the employee shall be afforded:

(1) deferred competition in examinations in which, in the judgment of the executive officer, the employee would be likely to have competed if he or she had not accepted the terminated appointment, provided that the examination is in progress or that the eligible list which resulted from the last examination for the class is still existing and valid; and

(2) placement back on the eligible list from which the employee was unlawfully appointed, provided that the eligible list still exists and is valid.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19257.5, Government Code.

HISTORY

1. New section filed 1-18-82; effective thirtieth day thereafter (Register 82, No. 4).

2. Change without regulatory effect amending opening sentence filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§266.2. Right to Respond.

Note • History

At least fifteen days prior to the date the board plans to take corrective action on an unlawful appointment, the executive officer shall notify the employee and the employee's appointing power of the proposed action. This notice shall state the reason(s) for the proposed action and notify the employee and the appointing power of their right to respond to the notice within the fifteen days either verbally or in writing.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18670, Government Code.

HISTORY

1. New section filed 1-18-82; effective thirtieth day thereafter (Register 82, No. 4).

2. Renumbering of former section 60 to section 266.2 filed 4-26-90; operative 5-26-90 (Register 90, No. 22).

§266.3. Right to Appeal.

Note • History

When corrective action is taken on an unlawful appointment, the employee and the appointing power may file a written appeal with the board within 30 calendar days after the date of notification of the board's final decision to take the corrective action upon which the appeal is based.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18670, Government Code.

HISTORY

1. New section filed 1-18-82; effective thirtieth day thereafter (Register 82, No. 4).

2. Renumbering of former section 60.1 to section 266.3 filed 4-26-90; operative 5-26-90 (Register 90, No. 22).

§275. Transferring into State Civil Service.

Note • History

When it is necessary for the State of California to assume work previously performed by a county, city, federal department or agency or public district, the board by resolution shall permit the employees who previously performed the work to qualify in state service in their positions upon allocation of their positions to an appropriate class in the state classification plan and in accordance with standards and procedures established by the executive officer.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19050.2, Government Code.

HISTORY

1. New section filed 10-18-79; effective thirtieth day thereafter (Register 79, No. 42). For prior history, see Registers 78, No. 44; 74, No. 36; 74, No. 18; 73, No. 51; 72, No. 42; 72, No. 32; 72, No. 28; 70, No. 42; 70, No. 27; and 70, No. 23.

2. Amendment filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).

3. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§276.2. Transferring into State Civil Service. [Repealed]

Note • History

NOTE

Reference: Section 18709, Government Code.

HISTORY

1. New section filed 4-14-77; effective thirtieth day thereafter (Register 77, No. 16).

2. Repealer filed 10-18-79; effective thirtieth day thereafter (Register 79, No. 42).

§277. Change in Time Base.

Note • History

The following provisions specify when employees are eligible for various time base changes without an appointment from an employment list. They are not to be construed, by themselves, as entitling employees to such changes or as enabling appointing powers to make such changes without the employee's consent. These provisions do not extend or modify an employee's eligibility to reinstate to a position in a different class:

(a) Increases in time base of part-time or intermittent employees to full time or movement of intermittent employees to part time are permitted when:

(1) The employee has previously held a permanent or probationary status appointment at or above the desired time base in the classification to which the appointment is to be made or in the classification that is substantially at or above the salary level of that classification; or,

(2) The appointing power can clearly demonstrate that the employee has previously been eligible for an appointment from an employment list to the position and time base in question; or,

(3) For at least two years the employee has held any combination of permanent or probationary appointments to the types of classes specified in subsection (1) and has worked at least 1920 hours in such appointments.

(b) Time base changes other than those specified in Part (a) of this rule are permitted at the discretion of the appointing power.

NOTE

Authority cited: Section 19062.5, Government Code. Reference: Sections 18550, 18551, 18552 and 19065 renumbered 19062.5, Government Code.

HISTORY

1. New section filed 5-9-84; effective thirtieth day thereafter (Register 84, No. 19).

2. Change without regulatory effect amending subsection (b) and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§279.1. Definition of a Personal Services Contract. [Renumbered]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19130, Government Code.

HISTORY

1. New section filed 4-17-89; operative 5-17-89 (Register 89, No. 21).

2. Change without regulatory effect renumbering former section 279.1 to section 547.59 filed 12-1-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 49).

§279.2. Undercut of State's Wage in Cost-Savings Based Contracts. [Renumbered]

Note • History

NOTE

Authority cited: section 18701, Government Code. Reference: Section 19130(a)(2).

HISTORY

1. New section filed 4-17-89; operative 5-17-89 (Register 89, No. 21).

2. Change without regulatory effect amending opening paragraph and subsections (b)-(c) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

3. Change without regulatory effect renumbering former section 279.2 to section 547.69 filed 12-1-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 49).

§279.3. Affirmative Action Impact. [Renumbered]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 11135-11139.5, 19130(a)(4), 19130(a)(8), 19790, 19791, 19793 and 19797, Government Code; and Section 1431, Labor Code.

HISTORY

1. New section filed 4-17-89; operative 5-17-89 (Register 89, No. 21).

2. Change without regulatory effect amending subsection (b) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

3. Change without regulatory effect renumbering former section 279.3 to section 547.70 filed 12-1-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 49).

§279.4. Amount of Savings. [Renumbered]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19130(a)(5) and 19130(a)(6), Government Code.

HISTORY

1. New section filed 4-17-89; operative 5-17-89 (Register 89, No. 21).

2. Change without regulatory effect renumbering former section 279.4 to section 547.71 filed 12-1-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 49).

Article 11. Limited Term Appointments

§281. Acquisition of Permanent Status.

Note • History

No time served in a limited-term appointment may count toward acquiring permanent status in any position.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19080.3 and 19083, Government Code.

HISTORY

1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

2. Amendment filed 6-10-83; effective thirtieth day thereafter (Register 83, No. 24).

§282. Termination.

Note • History

A limited-term employee may be separated at any time prior to the expiration of the term for which appointed by advising the employee either orally or in writing of the separation; provided, however, a limited-term employee may not be separated except for cause, if emergency or temporary employees in limited-term positions remain employed in the same class and the same layoff subdivision. If separated for cause, the appointing power shall give the employee, on or before the date of separation, written notice setting forth the reasons therefor. Within 30 days after the effective date of separation for cause, a copy of the notice shall be sent with the report of separation to the executive officer. The employee has no appeal from the action of the appointing power in terminating the limited-term employment except on the grounds that temporary or emergency employees remain employed in violation of this section.

The executive officer shall not again certify for limited-term employment in the same class the name of a person who has been separated for cause unless, after investigation, it is determined by the executive officer that the reason for separation should not bar the person from such further employment.

Cause as used in this rule shall include failure to demonstrate merit, efficiency, fitness, and moral responsibility.

NOTE

Reference: Section 19082, Government Code.

HISTORY

1. New section filed 1-13-48 (Register 11, No. 2).

2. Amendment filed 12-8-53; effective thirtieth day thereafter (Register 53, No. 22).

3. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

4. Change without regulatory effect amending opening paragraph filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

Article 12. Emergency Appointments

For the general statutory provisions on this subject, refer to Section 19120 of the act and sections following.

§300. General.

Note • History

The frequency, length, and circumstances of all emergency appointments made pursuant to Government Code Section 19888.1 shall be subject to the provisions of this article. The authority to make such appointments shall be limited to that provided by Sections 302.1, 302.2 and 302.3.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19888.1, Government Code.

HISTORY

1. New section filed 7-7-82; effective thirtieth day thereafter (Register 82, No. 28).

2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§301. Procedure.

Note • History

When emergency appointments are made under Government Code Section 19888.1, the appointing power shall establish and retain records consisting of the name of the appointee, the duties of the position, the reason for the appointment and such further data as may be required by the executive officer for the purpose of ensuring compliance with the provisions of this article.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19888.1, Government Code.

HISTORY

1. Amendment filed 11-19-57; effective thirtieth day thereafter (Register 57, No. 20).

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Amendment filed 7-7-82; effective thirtieth day thereafter (Register 82, No. 28).

§302. Review of Emergency Appointment. [Repealed]

Note • History

NOTE

Reference: Section 19120, Government Code.

HISTORY

1. New section filed 11-19-57; effective thirtieth day thereafter (Register 57, No. 20).

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Repealer filed 7-7-82; effective thirtieth day thereafter (Register 82, No. 28).

§302.1. Extreme Emergencies.

Note • History

The appointing power, to prevent the stoppage of public business in the case of fire, flood or other extreme emergency, may make emergency appointments subject to the provisions of Government Code Section 19888.1 and Sections 301, 303 and 304.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19888.1, Government Code.

HISTORY

1. New section filed 7-7-82; effective thirtieth day thereafter (Register 82, No. 28).

2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§302.2. Appointments for Short-Duration Work.

Note • History

Subject to review by the executive officer, the appointing power may employ persons under emergency appointments for up to 30 working days for specifically identified work which:

(a) Because of its unusual urgency, nature, volume, location, duration or other special characteristics, is distinct from the range of work normally performed by the appointing power's regular staff; and

(b) Is not expected to be performed within the appointing agency for more than 30 working days within any 12-month period.

If the appointing power or the executive officer determines that the type of work performed by employees appointed under this section will last for more than 30 working days within any 12-month period, any new or extended emergency appointments to perform such work shall be subject to the provisions of Section 302.3.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19888.1, Government Code.

HISTORY

1. New section filed 7-7-82; effective thirtieth day thereafter (Register 82, No. 28).

2. Change without regulatory effect amending subsection (b) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§302.3. Acting Assignments.

Note • History

The executive officer may authorize appointing powers to make emergency appointments on an acting basis to established positions for 20 to 60 working days when he/she determines that:

(a) Such appointments are needed to meet a specifically identified and reasonable operating need; and

(b) The identified need could not have been feasibly met through use of other civil service or administrative alternatives; and

(c) When a state employee is to be appointed, that such employee cannot effectively meet the identified need without a substantial change in duties that would clearly result in the employee working outside the scope of his/her current classification. Reassignments that do not substantially change the overall nature of an employee's work assignment shall not be a basis for an emergency appointment under this section.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19888.1, Government Code.

HISTORY

1. New section filed 7-7-82; effective thirtieth day thereafter (Register 82, No. 28).

2. Change without regulatory effect amending subsection (c) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§303. Duration of Employment.

Note • History

No person may serve under an emergency appointment for more than 60 working days in any 12 consecutive calendar months. Service under Section 302.1 may be exempted from this limit by the executive officer.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19888.1, Government Code.

HISTORY

1. New section filed 11-19-57; effective thirtieth day thereafter (Register 57, No. 20).

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Amendment filed 7-7-82; effective thirtieth day thereafter (Register 82, No. 28).

4. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§304. Reinstatement After Emergency Appointment.

Note • History

Permanent or probationary employees who vacate positions to accept emergency appointments shall have a mandatory right of return to their former position upon the conclusion of the emergency appointment if:

(a) The emergency appointment is under the same appointing power as the position the employee is vacating; or

(b) The employee is granted paid or unpaid leave to accept the emergency appointment.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19888.1, Government Code.

HISTORY

1. New section filed 7-7-82; effective thirtieth day thereafter (Register 82, No. 28).

Article 13. Reinstatement [Repealed]

For the general statutory provisions on this subject, refer to Section 19140 of the act and sections following.

§311. After Resignation. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code, Reference: Sections 19140-19144, Government Code.

HISTORY

1. Repealer filed 11-20-87; operative 12-20-87 (Register 87, No. 48).

§313. Demoted Employee. [Repealed]

History

HISTORY

1. Amendment filed -15-53; effective thirtieth day thereafter (Register 53, No. 16).

2. Amendment filed 7-10-56; effective thirtieth day thereafter (Register 56, No. 13).

3. Repealer filed 1-8-70 as an emergency; effective upon filing. Certificate of Compliance included (Register 70, No. 2).

Article 14. Probationary Period

For the general statutory provisions on this subject, refer to Section 19170 of the act and sections following.

§321. Extension of Probationary Periods.

Note • History

(a) In the event a probationer has not, during a prescribed calendar length of the probationary period, worked the hours set forth below, probation will automatically be extended until the probationer has worked the required number of hours.

(1) 840 if serving a six months' probationary period; or

(2) 1260 if serving a nine months' probationary period; or

(3) 1680 if serving a one year probationary period.

Vacation, sick leave, military leave or other leave of absence, compensating time off, suspension or other separations, including separations subsequently voided or otherwise set aside, shall not be considered working time.

The board shall be notified of an extension under this section.

(b) If a probationer has had a continuous period of absence of 60 or more working days and upon return from such absence the appointing power determines that the remaining portion of the probationary period is insufficient to evaluate that probationer's current performance the appointing power may extend the probationary period with the approval of the executive officer. The length of such extension shall be determined by the length of the completed portion of the probationary period at the beginning of the probationer's absence as follows:

(1) If up to one-third of the minimum number of hours required for the probationary period was worked, the remainder of the probationary period plus the extension shall not exceed the minimum number of hours required for the original probationary period.

(2) If over one-third but not more than two-thirds of the minimum number of hours required for completion of the probationary period was worked, the remainder of the probationary period plus the extension shall not exceed two-thirds of the minimum number of hours required to complete the original probationary period.

(3) If over two-thirds of the minimum number of hours required to complete the probationary period was worked, the remainder of the probationary period plus the extension shall not exceed one-third of the minimum number of hours required to complete the original probationary period.

(c) The probationary period may be extended for a maximum of five working days in order to comply with notice requirements as set forth in Section 52.6 for rejection during probation.

(d) Pursuant to Government Code Section 19170, an appointing power and an employee, who alleges that he/she has a disability as defined in Government Code Section 12926, may submit a written agreement for approval by the board, that would extend the employee's probationary period within his/her existing classification for up to six months to provide a reasonable accommodation to the employee as follows:

(1) The agreement shall describe the period of the extension, beginning and ending dates, and how the extended probationary period will allow the employee to demonstrate, before the extended probationary period ends, the ability to satisfactorily perform the essential functions of the position with the reasonable accommodation. The written agreement must be received by the board for review prior to the end of the employee's probationary period.

(2) If the employee's probationary period will end during the board's review, the board will automatically extend the probationary period until a determination is made to approve or disapprove the agreement. This period of time is inclusive of the extension time requested by the department. If the board does not approve the agreement, the board will extend the employee's probationary period by an additional ten working days from the date of service of the board's determination, to allow the appointing power sufficient time to proceed with a rejection during probation. This ten working day extension is in addition to that provided under subsection (c) above.

(e) Prior to the completion of the probationary period, the appointing power shall notify the employee in writing that the probationary period is being extended under this rule and of the length of the extension. Employees whose probationary periods are extended under this rule must also, over the entire course of their original and extended probationary periods, meet the minimum service requirements specified in subsection (a) above. The State Personnel Board shall notify the employee and the appointing power in writing of its decision to approve or disapprove any agreement reached pursuant to subsection (d) above.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19170 and 19173, Government Code.

HISTORY

1. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 70, No. 2.

2. Amendment filed 7-28-83; effective thirtieth day thereafter (Register 83, No. 31).

3. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

4. Amendment of subsection (c) and new subsections (d)-(e) filed 3-24-2003; operative 3-24-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 13).

5. Change without regulatory effect amending subsection (c) filed 4-11-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 15).

§321.5. Probationary Period of Reappointed, Reinstated, Demoted or Transferred Employees. [Repealed]

History

HISTORY

1. New section filed 11-7-49 (Register 18, No. 5).

2. Amendment filed 9-15-53; effective thirtieth day thereafter (Register 53, No. 16).

3. Amendment filed 10-11-61; effective thirtieth day thereafter (Register 61, No. 20).

4. Repealer filed 1-8-70 as an emergency; effective upon filing. Certificate of Compliance included (Register 70, No. 2).

§322. Probationary Period Requirements.

Note • History

Probationary period requirements for permanent appointments from an employment list; or by reinstatement, or by transfer, or by demotion are:

(a) A new probationary period shall be required when an employee enters or is promoted in the state civil service by permanent appointment from an employment list; upon reinstatement after a break in continuity of service resulting from a permanent separation; or by reinstatement or appointment from a reemployment list, pursuant to Section 548.152 or 548.153, to a classification with a promotional relationship to the classification of the employee's former position.

(b) An employee who has not attained permanent status when accepting another appointment shall serve the remainder of that probationary period unless required to serve a new probationary period.

(c) A new probationary period shall be required unless waived by the appointing power when an employee is being appointed:

(1) Without a break in service in the same class in which the employee has completed the probationary period but under a different appointing power.

(2) Without a break in service to a class with substantially the same or lower level of duties and responsibilities and salary range as a class in which the employee has completed the probationary period.

(3) From a general reemployment list to the same class in which the employee has completed the probationary period but under a different appointing power.

(4) By reinstatement or appointment from a reemployment list, pursuant to Section 548.152 or 548.153, to a classification to which the employee could have transferred from his or her former position.

(d) A new probationary period shall not be required when an employee is being appointed:

(1) From any reemployment list under the same appointing power, except as otherwise provided in this section;

(2) By reinstatement with a right of return, except as otherwise provided in this section;

(3) Without a break in service under the same appointing power and to the same class in which the employee had completed the probationary period; or

(4) By demotion under Government Code Section 19997.8.

“Without a break in service” as used in this section is continuous service as defined in Section 6.4.

NOTE

Authority cited: Section 19170, Government Code. Reference: Sections 18527 and 19171, Government Code.

HISTORY

1. Amendment filed 1-8-70 as an emergency; effective upon filing. Certificate of Compliance included (Register 70, No. 2). For prior history, see Register 61, No. 5.

2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Amendment filed 5-29-84; effective thirtieth day thereafter (Register 84, No. 22).

4. Change without regulatory effect of subsection (d)(4) (Register 87, No. 14).

5. Change without regulatory effect amending subsections (a)(4), (c)(4) and (d)(4) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§323. Performance Appraisal of Probationers.

Note • History

NOTE

Authority cited: Section 19170, Government Code. Reference: Section 19302, Government Code.

HISTORY

1. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 60, No. 24.

2. Repealer filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).

§324. Duty to Reject Probationer.

History

If the conduct, capacity, moral responsibility, or integrity of the probationer is found to be unsatisfactory, it shall be the duty of the appointing power to reject that probationer from the position.

HISTORY

1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§325. Duty to Report Delinquencies.

If, during the probationary period of any state employee, there is presented to the executive officer convincing evidence that the moral conduct, character, or integrity of the employee is unsatisfactory, the executive officer shall present such evidence to the appointing power.

§326. Restoration to Eligible List.

History

If after investigation the board or the executive officer determines that the probationer's name should be restored to the eligible list under Section 19175(b) of the act, the name shall be restored to the eligible list from which the probationer was certified if such list is still in existence. If the probationer's name is restored to the eligible list, it shall be placed thereon in accordance with the probationer's score in the examination from which such list resulted.

HISTORY

1. Amendment filed 11-7-49 (Register 18, No. 5).

2. Repealer of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§327. Cancellation or Withdrawal of Notice of Rejection.

Note • History

The appointing power may cancel or withdraw a notice of rejection of a probationer in the following manner and not otherwise: (a) by filing with the board on or prior to the thirtieth calendar day after the effective date of rejection, a written notice of cancellation or withdrawal setting forth the reasons therefor, and (b) by obtaining the concurrence of the executive officer to such cancellation or withdrawal prior to such filing.

An employee whose probationary rejection is canceled or withdrawn shall, for such time as the executive officer determines is necessary to prevent injustice to the employee, be entitled to payment of salary less legal offsets, if any, and to credit for seniority, sick leave, vacation, and merit salary adjustment.

A cancellation or withdrawal of rejection shall be without prejudice to further rejection, punitive action, or disciplinary proceedings for the same or other reasons.

NOTE

Reference: Section 19175.5, Government Code.

HISTORY

1. Originally published 3-22-45 as 123 (Title 2).

2. Revision filed 4-11-47 (Register 7).

3. Amendment filed 12-20-49 (Register 18, No. 9).

4. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

Article 15. Performance Reports [Repealed]

HISTORY

1. Repealer of article 15 (sections 340-346) filed 8-28-85; operative 9-27-85 (Register 85, No. 35). For prior history, see Register 60, No. 24.

Article 16. Absences [Repealed]

HISTORY

1. Repealer of Article 16 (Sections 360, 361, 364, 365, 367-374) filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35). For prior history of Article 16, including Sections 362, 363 and 366, see Registers 78, No. 45 and 77, No. 15.

Article 17. Vacations [Repealed]

HISTORY

1. Repealer of Article 17 (Sections 381-387) filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35). For prior history, see Register 77, No. 15.

Article 18. Sick Leave [Repealed]

HISTORY

1. Repealer of Article 18 (Sections 401-404, 406, 407 and 409) filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35). For prior history of Article 18, including Sections 405 and 408, see Registers 77, No. 34 and 77, No. 15.

Article 18.5. Industrial Disability Leave

For the general statutory provisions on this subject, refer to Sections 19815.4(d) through 19877.

§417.3. Medical Officer's Responsibilities.

History

Where there is disagreement concerning the medical suitability of placement of the disabled employee who has completed the vocational rehabilitation program, the State Personnel Board Medical Officer shall determine the appropriateness of the placement based upon the medical evidence submitted.

HISTORY

1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

2. Repealer of Sections 410, 410.1, 410.2, 411-417, 417.1, 417.2 and 418 filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20). For prior history, see Registers 84, No. 15; 77, Nos. 34 and 15; 76, Nos. 42 and 9; 75, Nos. 44 and 24; and 74, No. 52.

Article 18.6. Nonindustrial Disability Insurance [Repealed]

For general statutory provisions on the subject, refer to Government Code Sections 18135-18142.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18135 and 18135.5, Government Code.

HISTORY

1. New Article 18.6 (Sections 419, 419.1, 420, 421, 422, and 423) filed 9-24-76 as an emergency; designated effective 10-1-76 (Register 76, No. 39).

2. Certificate of Compliance filed 1-25-77 (Register 77, No. 5).

3. Amendment and repealer of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

4. Amendment filed 11-3-78; effective thirtieth day thereafter (Register 78, No. 44).

5. Amendment filed 12-7-78; effective thirtieth day thereafter (Register 78, No. 49).

6. Amendment filed 1-9-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 2).

7. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).

8. Repealer of Article 18.6 (Sections 419-423) filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20).

Article 19. Transfer

For the general statutory provisions on this subject, refer to Sections 19050.2 - 19050.9 of the act.

§425. To Another Agency.

Note • History

A transfer of an employee from a position under one appointing power to a position under another appointing power may be made, if the transfer is to a position in the same class or in another class with substantially the same salary range and designated as appropriate by the executive officer. The effective date of such transfer shall be no later than 30 calendar days after receipt of a written request from the agency requesting the employee's service to the appointing power by whom the employee is employed, unless an earlier or later date of transfer is agreeable to both appointing powers. No other type of transaction which has the same general effect as a transfer, such as reinstatement following resignation, shall be used to circumvent the above provisions.

NOTE

Reference: Section 19050.4, Government Code.

HISTORY

1. Amendment filed 3-26-68; effective thirtieth day thereafter (Register 68, No. 13).

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Change without regulatory effect of NOTE filed 12-21-88 (Register 89, No. 1).

§426. Temporary Assignments or Loans.

Note • History

Temporary assignments or loans of employees in accordance with Section 19050.8 of the Government Code may be made with the approval of the executive officer, provided that such assignments shall be documented by a written statement containing the following information:

(a) The duration and duties of the assignment.

(b) Certification that a layoff by reason of such assignment or loan will not become necessary in the appointing agency.

(d) If the temporary assignment is for compelling management need purposes, a description of the management need and the staff expertise required; justification that the agency's needs cannot be met through the existing organizational structure; certification that the employee possesses the required expertise; and certification that the employee has voluntarily consented to the assignment.

(e) If the temporary assignment is to facilitate the return of an injured employee to work, justification of the need of such an assignment and medical verification of the employee's condition.

Any participating agency or employee may terminate the assignment at any time for any reason or the executive officer may terminate it if it is being carried on contrary to or in a manner inconsistent with the Government Code or these regulations. An employee participating in such an arrangement shall be considered for all purposes of the Government Code and regulations as an employee of the agency from which loaned or assigned except that the employee's salary may be paid in any proper manner agreed upon by the participating agencies.

The board shall be notified upon termination of any temporary assignment.

NOTE

Authority cited: Section 19050.8, Government Code. Reference: Section 19050.8, Government Code.

HISTORY

1. New section filed 11-7-49 (Register 18, No. 5).

2. Amendment filed 11-16-70; effective thirtieth day thereafter (Register 70, No. 47).

3. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

4. Amendment filed 7-14-86; effective thirtieth day thereafter (Register 86, No. 29).

5. Change without regulatory effect of first paragraph filed 12-21-88 (Register 89, No. 1).

6. Change without regulatory effect amending subsection (e) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§427. Interjurisdictional Employee Exchange.

Note • History

A state appointing power may with the concurrence of an employee assign or loan the employee to another jurisdiction, or may receive an employee from another jurisdiction, in accordance with Government Code Section 19050.8, except as otherwise provided by law, provided that the following conditions are met:

(a) The state appointing power determines that the assignment or loan is of benefit to the state and is for either training purposes or for compelling management need purposes as specified in Section 442.

(b) The other jurisdiction is governmental in character. It may be federal, state, or local, including other countries, public colleges and universities, and other instrumentalities, and may be in or outside of California.

(d) Both appointing authorities approve a written document containing, as a minimum, a statement that the assignment or loan is subject to this rule, the period and duties and conditions of the assignment or loan, the training or compelling management need to be accomplished, and provision for either continuing or substituting alternatives for all rights and benefits to which the employee of the agency or jurisdiction is otherwise entitled.

(e) Any necessary authorizations for funds or travel are obtained from the Departments of Finance, General Services, or other appropriate authority.

Employees from other jurisdictions gain no status in the California state service through such temporary assignments or loans.

For the purposes of administering the state civil service laws and regulations, a state employee participating in such an arrangement shall be considered an employee of the state agency from which loaned or assigned, except the employee's work and activities shall be subject to the direction of the jurisdiction to which loaned or assigned.

Either appointing authority or the employee may terminate the assignment at any time for any reason or the executive officer may terminate it if it is being carried on contrary to or in a manner inconsistent with the Government Code or these regulations. The employee's salary and benefits may be paid in any proper manner agreed upon by the appointing authorities of the participating agency and jurisdiction.

NOTE

Authority cited: Section 19050.8, Government Code. Reference: Section 19050.8, Government Code.

HISTORY

1. New section filed 11-6-70 as an emergency; designated effective 11-23-70. Certificate of Compliance included (Register 70, No. 45).

2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Amendment filed 7-14-86; effective thirtieth day thereafter (Register 86, No. 29).

4. Change without regulatory effect of first paragraph filed 12-21-88 (Register 89, No. 1).

5. Change without regulatory effect amending subsections (a) and (e) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§430. General.

Note • History

Classes meeting the criteria established by this article shall be considered to involve substantially the same level of duties, responsibility and salary for the purposes of Government Code Section 19050.4; provided that the board or the executive officer may prohibit transfer between such classes based on a specific finding that they are in a promotional relationship.

The board or executive officer may also prohibit transfers from classes that have been specifically established for limited duration positions.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19050.4, Government Code.

HISTORY

1. New section filed 1-6-83; effective thirtieth day thereafter (Register 83, No. 2).

2. Change without regulatory effect filed 12-21-88 (Register 89, No. 1).

3. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§431. Salary and Class Level Comparisons.

Note • History

(a) The following definitions shall apply to salary and class level comparisons made under this chapter:

(1) “Substantially the same salary range or salary level” means the maximum rate of the salary range of one class is less than two steps higher than or is the same as the maximum rate of the salary range of another class.

(2) “Promotional salary relationship, range or level” means the maximum rate of the salary range of one class is at least two steps higher than the maximum rate of the salary range of another class.

(3) “Salary range” means the range of rates between, and including, the minimum and maximum rate currently authorized for the class.

(4) “Rate,” for employees compensated on a monthly basis, means any one of the full dollar amounts found within the salary ranges established by the Department of Personnel Administration and, for employees compensated on a daily or hourly basis, means any one of the dollar and cents amounts found within the salary range.

(5) Unless otherwise provided by resolution of the board, “step,” for employees compensated on a monthly basis, means a five percent differential above or below a salary rate, rounded to the nearest dollar and, for employees compensated on a daily or hourly basis, means a five percent differential above or below a rate rounded to the nearest dollar and cents amount.

(A) Pursuant to (5), one step higher is calculated by multiplying the rate by 1.05. One step lower is calculated by dividing the rate by 1.05 (e.g., $2,300 x 1.05 = $2,415, one step higher; 2,300 ÷ 1.05 = 2,190 one step lower).

(B) Pursuant to (1) and (2), two steps higher is calculated by multiplying the rate by 1.05 and then multiplying the product by 1.05 (e.g., $2,300 x 1.05 = $2,415 x 1.05 = $2,536, two steps higher).

(b) Unless otherwise provided by resolution of the board, the maximum rate of the lowest salary range currently authorized for a class is used to make salary comparisons for the purposes of this chapter.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18807 and 19050.4, Government Code.

HISTORY

1. New section filed 1-6-83; effective thirtieth day thereafter (Register 83, No. 2).

2. Relettering and amendment of former subsections (a)-(c) to new subsections (a) and (b), and repealer of Schedules A and B filed 3-8-89; operative 3-8-89 (Register 89, No. 11).

3. Change without regulatory effect of subsection (a)(3) filed 6-29-89 (Register 89, No. 27).

4. Change without regulatory effect amending Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§432. Class Series.

Note • History

For the purpose of this article, a class series is any vertically related group of classes, covering the same occupational specialty and same program area, which constitute a primary promotional pattern for a specifically identifiable group of employees.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19050.4, Government Code.

HISTORY

1. New section filed 1-6-83; effective thirtieth day thereafter (Register 83, No. 2).

2. Change without regulatory effect of NOTE filed 12-21-88 (Register 89, No. 1).

3. Change without regulatory effect amending Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§433. Voluntary Transfers Between Classes.

Note • History

Unless specifically prohibited pursuant to Section 430 or the provisions of 433.1, appointing powers may allow employees to voluntarily transfer between classes when the employee possesses any licenses, certificates, or registration required in the “to” class provided that either:

(a) The salary range of the “to” class is exactly the same or any amount lower than that of the “from” class.

(b) The salary range of the “to” class is any amount higher than that of the “from” class, provided that:

(1) It is not a promotional salary range; and

(2) The two classes are in different class series unless the board specifically provides for transfer within a series; and

(3) There is no class in the “to” series that is exactly the same in salary as the “from” class; and

(4) The “to” class is the class in its series that is immediately higher in pay than the “from” class; and

(5) The transfer does not preclude a future transfer that is part of the established upward mobility pattern through which the employee is moving; and

(6) The two classes do not contain positions that have a supervisory-subordinate relationship under the appointing power making the transfer.

In applying these criteria, separate salary ranges within a class shall be treated as if they were separate classes when a board resolution allows salary ranges other than the lowest range for the class to be used for salary comparison purposes.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19050.4, Government Code.

HISTORY

1. New section filed 1-6-83; effective thirtieth day thereafter (Register 83, No. 2).

2. Change without regulatory effect of NOTE filed 12-21-88 (Register 89, No. 1).

3. Change without regulatory effect amending opening paragraph and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

4. Amendment of first paragraph filed 2-5-2002; operative 2-5-2002. Submitted to OAL for printing only pursuant to Government Code section 18213 (Register 2002, No. 12).

§433.1. Voluntary Transfers Between Classes--Bargaining Unit 10 Employees.

Note • History

Unless specifically prohibited pursuant to Section 430, appointing powers may allow employees to voluntarily transfer between classes when the employee possesses any licenses, certificates, or registration required in the “to” class provided that either:

(a) The salary range of the “to” class is exactly the same or any amount lower than that of the “from” class; and, for any class assigned to State Bargaining Unit 10, excluding the following listed classes, the employee shall meet the minimum education requirement as identified in the respective class specification: Energy Analyst, Energy Resources Specialist I and II; Hazardous Materials Specialist, Associate Hazardous Materials Specialist and Senior Hazardous Materials Specialist (Technical); Associate Energy Specialist (Efficiency) and Energy Commission Specialist I, II, and III (Efficiency); Associate Energy Specialist (Forecasting) and Energy Commission Specialist I, II, and III (Forecasting); Associate Energy Specialist (Technology Evaluation and Development) and Energy Commission Specialist I, II, and III (Technology Evaluation and Development); Assistant and Associate Geologist and Senior Geologist (Specialist); Associate Geophysicist; Health and Safety Program Specialist I, II, and III; Assistant and Associate Meteorologist; Senior Meteorologist, Water Resources; Microbiologist Intern; Petroleum Geologist; Integrated Waste Management Specialist and Senior Integrated Waste Management Specialist; and Pest Prevention Assistant I, II, and III (Various Projects).

(b) The salary range of the “to” class is any amount higher than that of the “from” class, provided that:

(1) It is not a promotional salary range; and

(2) The two classes are in different class series unless the board specifically provides for transfer within a series; and

(3) There is no class in the “to” series that is exactly the same in salary as the “from” class; and

(4) The “to” class is the class in its series that is immediately higher in pay than the “from” class; and

(5) The transfer does not preclude a future transfer that is part of the established upward mobility pattern through which the employee is moving; and

(6) The two classes do not contain positions that have a supervisory-subordinate relationship under the appointing power making the transfer; and

(7) For any class assigned to State Bargaining Unit 10, excluding the following listed classes, the employee shall meet the minimum education requirement as identified in the respective class specification: Energy Analyst, Energy Resources Specialist I and II; Hazardous Materials Specialist, Associate Hazardous Materials Specialist and Senior Hazardous Materials Specialist (Technical); Associate Energy Specialist (Efficiency) and Energy Commission Specialist I, II, and III (Efficiency); Associate Energy Specialist (Forecasting) and Energy Commission Specialist I, II, and III (Forecasting); Associate Energy Specialist (Technology Evaluation and Development) and Energy Commission Specialist I, II, and III (Technology Evaluation and Development); Assistant and Associate Geologist and Senior Geologist (Specialist); Associate Geophysicist; Health and Safety Program Specialist I, II, and III; Assistant and Associate Meteorologist; Senior Meteorologist, Water Resources; Microbiologist Intern; Petroleum Geologist; Integrated Waste Management Specialist and Senior Integrated Waste Management Specialist; and Pest Prevention Assistant I, II, and III (Various Projects).

NOTE

Authority cited: Sections 18211, 18213 and 18701, Government Code. Reference: Section 19050.4, Government Code.

HISTORY

1. New section filed 2-5-2002; operative 5-7-2002. Submitted to OAL for printing only pursuant to Government Code section 18213 (Register 2002, No. 12).

2. Editorial correction amending operative date in History 1 (Register 2002, No. 25).

3. Amendment of subsections (a) and (b)(7) and Note filed 5-24-2006; operative 5-24-2006. Submitted to OAL for printing only pursuant to Government Code section 18213 (Register 2006, No. 21).

§434. Involuntary Transfer Between Classes.

Note • History

When the transfer between classes is not voluntary on the part of the employee, the class to which the employee is transferred must have prior executive officer approval.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19050.4, Government Code.

HISTORY

1. New section filed 10-19-82; effective thirtieth day thereafter (Register 82, No. 43).

2. Change without regulatory effect of NOTE filed 12-21-88 (Register 89, No. 1).

3. Editorial correction of History 2 (Register 95, No. 5).

§435. Consecutive Transfer.

Note • History

Consecutive transfers shall not be permitted when their combined result would be inconsistent with the provisions of this article or Government Code Section 19050.4.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19050.4, Government Code.

HISTORY

1. New section filed 10-19-82; effective thirtieth day thereafter (Register 82, No. 43).

2. Change without regulatory effect filed 12-21-88 (Register 89, No. 1).

3. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§438. Temporary Assignments for Training and Development.

Note • History

(a) Eligibility for training and development assignments shall be limited to:

(1) employees who have permanent status in their present class; or

(2) employees who have probationary status and who previously have had permanent status and who, since such permanent status, have had no break in service due to a permanent separation.

(b) Employees shall be allowed to accept training and development assignments involving the duties of a different class only as outlined below under (1), (2), or (3):

(1) The training and development class is a class with substantially the same salary to which the employee could voluntarily transfer under the provisions of this article.

(2) The training and development class has a promotional salary range provided that:

(A) The higher salaried class is the class in the desired occupational area nearest in salary to the employee's current class that will provide an appropriate training experience; and

(B) When the training and development class is more than three steps higher than the employee's current class, the intent of the training and development assignment is to prepare the employee for a permanent move to the training and development class or to a closely related class, and the employee will meet minimum qualifications for the higher salaried class by the conclusion of the training and development assignment; and

(3) The training and development class has a demotional salary range provided that:

(A) It is the class in the desired occupational area nearest in salary to the employee's current class that will provide the appropriate training experience; and

(B) Any assignments to classes that are more than three steps lower than the employee's status class are approved in advance by the executive officer; and

(C) The purpose of the training and development assignment is to prepare for future service in a class that has a salary range that is substantially the same or promotional in comparison to the salary range of the employee's current classification.

(D) The assignment will provide experience that differs from the duties that the employee has previously performed.

NOTE

Authority cited: Section 19050.8, Government Code. Reference: Section 19050.8, Government Code.

HISTORY

1. New section filed 1-6-83; effective thirtieth day thereafter (Register 83, No. 2).

2. Change without regulatory effect of NOTE filed 12-21-88 (Register 89, No. 1).

3. Amendment of section heading, new subsection (a), relettering and amendment of new subsection (b) and redesignating all following paragraphs filed 11-20-91; operative 12-20-91 (Register 92, No. 8).

§439. Status Requirement.

Note • History

NOTE

Authority cited: Section 19050.8, Government Code. Reference: Section 19050.8, Government Code.

HISTORY

1. New section filed 5-23-83; effective upon filing pursuant to Government Code section 11346.2(d) (Register 83, No. 22).

2. Amendment filed 7-14-86; effective thirtieth day thereafter (Register 86, No. 29).

3. Change without regulatory effect of subsection (a) filed 12-21-88 (Register 89, No. 1).

4. Repealer filed 11-20-91; operative 12-20-91 (Register 92, No. 8).

§440. Promotions.

Note • History

Employees may be promoted during a training and development assignment provided that:

(a) There is a vacant position to which the employee could be promoted if the employee were not on the training and development assignment; and

(b) The appointing power certifies that the employee would have been its first preference for appointment to the vacancy if he/she had not been on the training and development assignment; and

(d) The promotion will not result in a layoff at the termination of the training and development assignment.

The promotion and training and development assignment may be simultaneous provided that conditions of (a) through (d) above are met.

NOTE

Authority cited: Section 19050.8, Government Code. Reference: Section 19050.8, Government Code.

HISTORY

1. New section filed 5-23-83; effective upon filing pursuant to Government Code Section 11346.2(d) (Register 83, No. 22).

2. Change without regulatory effect of NOTE filed 12-21-88 (Register 89, No. 1).

§441. Consecutive Temporary Assignments.

Note • History

Prior executive officer approval shall be required for any temporary assignment as defined in Government Code Section 19050.8 that results in an employee spending more than 24 months of any 36-month period on such temporary assignments. Such assignments shall not be approved when the executive officer determines that they constitute a continuation of the employee's previous temporary assignment.

NOTE

Authority cited: Section 19050.8, Government Code. Reference: Section 19050.8, Government Code.

HISTORY

1. New section filed 5-23-83; effective upon filing pursuant to Government Code Section 11346.2(d) (Register 83, No. 22).

2. Amendment filed 7-14-86; effective thirtieth day thereafter (Register 86, No. 29).

3. Change without regulatory effect filed 12-21-88 (Register 89, No. 1).

§442. Temporary Assignment to Meet Compelling Management Needs.

Note • History

(a) Eligibility for compelling management needs assignments shall be limited to:

(1) employees who have permanent status in their present class; or

(2) employees who previously have had permanent status and who, since such permanent status, have had no break in service due to a permanent separation.

(b) Subject to the approval of the executive officer, the appointing power may make temporary assignments pursuant to Government Code Section 19050.8 to meet program or departmental needs of limited duration that have a broad and significant impact on departmental operations and efficiency. Such needs must be urgent and nonrecurring and may involve either:

(1) Special projects or assignments that require a breadth and depth of demonstrated expertise or a level or response that cannot be obtained under normal staffing procedures; or

(2) Staffing situations that require temporary reassignments to prevent or alleviate a negative impact upon departmental operations and efficiency.

(c) Temporary assignments shall not be made or continued under this section where there is a reasonable basis for utilizing or pursuing other personnel management options, such as transfer, list appointment, classification plan changes, adverse action, layoff, probationary rejection, or medical termination. Other staff shall not be laid off, demoted, or similarly displaced as a result of temporary assignments made under this section.

(d) Employees placed on temporary assignments to meet a compelling management need shall remain in their current classifications for all purposes of the Act and these regulations. The duties and responsibilities of the position associated with the compelling management need may vary from those of the employee's appointment classification. Such assignments may only be made with the voluntary consent of the employee.

(e) An employee in a Career Executive Assignment may be placed in a temporary assignment to meet a compelling management need in accordance with the provisions of this section so long as such reassignment does not generate the need for an additional appointment to the Career Executive Assignment position. Prior executive officer approval shall be required.

(f) Either the employee or the appointing power may terminate the temporary assignment at any time for any reason, or the executive officer may terminate it, if it is determined to be inconsistent with the Government Code or board regulations.

(g) Within 30 days of approving any assignment under this section, the appointing power shall provide written notification of such assignment to the Department of Personnel Administration.

NOTE

Authority cited: Section 19050.8, Government Code. Reference: Section 19050.8, Government Code.

HISTORY

1. New section filed 7-14-86; effective thirtieth day thereafter (Register 86, No. 29).

2. Change without regulatory effect of subsection (a) filed 12-21-88 (Register 89, No. 1).

3. New subsection (a) and relettering of following paragraphs filed 11-20-91; operative 12-20-91 (Register 92, No. 8).

4. Change without regulatory effect amending subsections (c)-(g) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§443. Temporary Assignments for Injured Employees.

Note • History

(a) Eligibility for returning injured employees to work assignments shall be limited to:

(1) employees who have permanent or probationary status in their present class; or

(2) employees who previously have had permanent or probationary status and who, since having had such status, have had no break in service due to a permanent separation.

(b) This section specifies when injured employees may receive temporary assignments involving duties of a class other than the one to which they are appointed. Temporary assignments involving duties that fall within the employee's appointment class may be made without respect to this section.

(c) For the purpose of Government Code Section 19050.8(c) an “injured” employee is an eligible employee with a medically verified disability, injury, or illness, whether job or nonjob related, that requires the employee to be reassigned to duties outside his/her current classification in order to remain productive.

(d) Eligibility for temporary assignments shall be limited to injured employees who, based on medical opinion, are unable to perform the essential duties of their current classification.

(e) When the employee and appointing power agree, an injured and eligible employee, including a career executive, may be placed in a temporarily modified work assignment involving duties not within the employee's current class for up to two years provided that:

(1) Such assignments shall not involve the duties of a class that has a promotional relationship to the employee's appointment class; and

(2) The assignments may involve the duties of a class that has a demotional relationship to the employee's appointment class only to the extent that such a demotional assignment is required in order to provide a productive work assignment that is within the employee's capability; and

(3) Such assignments for career executive employees require prior approval by the executive officer.

(4) Such assignments for career executive employees do not generate the need for an additional appointment to the Career Executive Assignment position.

(f) A probationary employee who is placed on a temporary assignment as defined in Government Code Section 19050.8(c) shall be considered temporarily absent from his/her appointment classification, and shall be subject to the probationary period extension provisions of Section 321.

(g) Either the employee or the appointing power may terminate the temporary assignment at any time for any reason, or the executive officer may terminate it, if it is determined to be inconsistent with the Government Code or board regulations.

NOTE

Authority cited: Section 19050.8, Government Code. Reference: Section 19050.8, Government Code.

HISTORY

1. New section filed 7-14-86; effective thirtieth day thereafter (Register 86, No. 29).

2. Change without regulatory effect of subsections (b) and (e) filed 12-21-88 (Register 89, No. 1).

3. New subsection (a) and relettering of following subsections including amendment to subsection (c) filed 11-20-91; operative 12-20-91 (Register 92, No. 8).

4. Change without regulatory effect amending subsections (b), (f) and (g) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§444. Publication and Screening.

Note • History

(a) Unless exempted under subsection (b), all transfers and training and development assignments that result in an employee moving to a position that is covered by an affirmative action or upward mobility goal established pursuant to Government Code Sections 19232, 19402, or 19790 shall be subject to the following posting and screening requirements.

(1) Advance notice of the opportunity for such movement shall be posted for at least seven days at the worksites of eligible departmental employees. Posting may be limited to geographic areas within which employees could reasonably be expected to accept the opportunity without a change of residence. The executive officer may specify a broader area of notice consistent with recruitment patterns for the class when she/he determines that an adequate affirmative action candidate group does not exist within the area specified above.

Alternatives to this posting process may be allowed when the executive officer finds that such alternatives are at least as effective as the prescribed process in meeting established affirmative action and upward mobility goals.

(2) The advance notice shall describe the opportunity and its duration and location and shall state that the opportunity is being offered consistent with State laws and Executive Orders ensuring equal opportunity for employment regardless of an applicant's sex, race, religion, ancestry, disability, age, or sexual orientation.

(3) All applicants must be considered based on published standards and criteria that have been made available to them during the application filing period. The consideration may consist of an application evaluation, oral interview, or similar civil service selection techniques.

(4) All applicants shall be informed of the results of the screening process. When the results will be used to select employees for future vacancies or training opportunities, the applicants shall be informed of their eligibility for such future selection.

(b) Transfers and training and development assignments shall be exempt from the requirements specified in section (a) when they:

(1) Involve movement of an employee between positions that are within the same classification and appointing power.

(2) Are intended to remedy a particular employee's performance deficiency that has been identified through the performance evaluation process conducted pursuant to Government Code Sections 19172 or 19992.2; or

(3) Provide a modified work assignment that is necessary to continue the employment of an injured or disabled employee; or

(4) Involve movement of an employee between positions under the same appointing power that fall within the same occupational and level category for affirmative action and upward mobility goal-setting purposes; or

(5) Are necessary to avoid the need to layoff or demote an employee, or involuntarily transfer an employee to another classification or to another geographic location that would require an employee to change his or her place of residence; or

(6) Are needed to continue the employment of an individual hired through the Career Opportunity Development Program established by the Welfare Reform Act of 1971.

NOTE

Authority cited: Sections 18701, 19792 and 19050.3, Government Code. Reference: Sections 19233, 19406 and 19792, Government Code.

HISTORY

1. New section filed 9-12-83; effective thirtieth day thereafter (Register 83, No. 38).

2. Change without regulatory effect of NOTE filed 12-21-88 (Register 89, No. 1).

3. Change without regulatory effect amending subsections (a)-(a)(1) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

Article 20. Separations from Service

For the general statutory provisions on this subject, refer to Section 19500 of the act and sections following.

§445. Resignation from State Service. [Repealed]

History

HISTORY

1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

2. Repealer filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20).

§446. Temporary and Permanent Separations.

Note • History

Temporary separations from state service shall include all types of leave of absence including leave under Section 599.785, military leave, suspension, termination for medical reasons, termination of permanent or probationary employee by layoff, termination by displacement, and disability retirement. Permanent separations from state service shall include dismissal; resignation; automatic resignation (AWOL); rejection during probationary period; termination for failure to meet conditions of employment; termination of limited-term, temporary authorization, emergency, Career Executive Assignment, or exempt appointment; and service retirement.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19996, Government Code.

HISTORY

1. New section filed 11-27-68; effective thirtieth day thereafter (Register 68, No. 45).

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).

4. Amendment filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).

5. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§447. Continuity of Intermittent Employment. [Repealed]

Note • History

NOTE

Reference: Section 19100, Government Code.

HISTORY

1. New section filed 5-15-73; effective thirtieth day thereafter (Register 73, No. 20).

2. Repealer filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)82); effective thirtieth day thereafter (Register 86, No. 20).

§448. Automatic Resignation of Intermittent Employees.

Note • History

(a) An intermittent employee whose continuity of employment in a position is interrupted by a nonwork period that extends longer than one year may be considered to have automatically resigned from the position without fault as of one year from the last day the employee was on pay status subject to the restrictions in subsection (b).

(b) separations are restricted to:

(1) nonwork periods not covered by a paid leave, a formal leave of absence without pay or other temporary separation and,

(2) those circumstances which create a presumption that the employee has abandoned his or her position.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19100.5, Government Code.

HISTORY

1. New section filed 5-15-73; effective thirtieth day thereafter (Register 73, No. 20).

2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).

4. Amendment filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).

5. Designation and amendment of subsection (a), new subsections (b)-(b)(2) and amendment of Note filed 9-4-92; operative 10-5-92 (Register 92, No. 36).

Article 21. Layoff Review

For the general statutory provisions on this subject, refer to Section 19530 of the act and sections following.

§458. Corrective Action Initiated by the Executive Officer.

Note • History

When a position is reallocated to a lower class and the appointing authority fails within a four-month period following the reallocation either to reassign appropriate duties, to effect a change of status of the incumbent to a class appropriate for the assigned duties, or to develop a plan for corrective action which is approved by the executive officer, the executive officer may, pursuant to Government Code Section 18804, initiate a layoff in the class, including determining the area of layoff, or such other corrective action as deemed appropriate.

The appointing authority shall provide, upon request of the executive officer, in accordance with Government Code Section 18573, all the necessary information required to effect the corrective action.

The procedures established by the executive officer to implement this section shall provide for appropriate and timely notification to employees concerned of board actions which affect their position or status.

NOTE

Reference: Sections 18573 and 18804, Government Code.

HISTORY

1. New section filed 4-26-67; effective thirtieth day thereafter (Register 67, No. 17).

2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

4. Amendment of article heading filed 5-7-2003 subject to partial compliance with the Administrative Procedure Act and limited review by the Office of Administrative Law pursuant to Government Code section 18215; effective on filing pursuant to Government Code section 11343.4 (Register 2003, No. 19). For prior history of sections 450-457 and 460, see Register 25, No. 5, Register 60, No. 24 and Register 86, No. 20.

§460. Reemployment List Order.

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19533 and 19533.04, Government Code.

HISTORY

1. New section filed 10-3-80; effective thirtieth day thereafter (Register 80, No. 40).

2. Repealer filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20).

§470. General.

Note • History

A department undergoing layoff shall, prior to implementing a layoff, notify the board's executive officer of the impending layoff so that the executive officer may determine the applicability of Government Code Section 19798. If federal law or the United States Constitution requires the adjustment of the order of layoff pursuant to Government Code Section 19798, or if the failure to adjust the order of layoff in accordance with Government Code Section 19798 would result in ineligibility for a federal program and a loss of federal funds, a department may not proceed with a seniority-based layoff, but may have to adjust the order of layoff under the circumstances set forth in Section 471.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19798, Government Code; and Connerly v. State Personnel Bd. (2001) 92 Cal. App. 4th 16.

HISTORY

1. New section filed 6-5-81; effective thirtieth day thereafter (Register 81, No. 23).

2. Repealer and new section and amendment of Note filed 5-7-2003 subject to partial compliance with the Administrative Procedure Act and limited review by the Office of Administrative Law pursuant to Government Code section 18215; effective on filing pursuant to Government Code section 11343.4 (Register 2003, No. 19).

§470.1. Definitions.

Note • History

For purposes of this Article, in conjunction with the definitions used in Section 547.80, the following definitions shall apply:

(a) “Affected Workforce” means all employees in the class(es) of layoff.

(b) “Census Survey” is the assessment of affected workforce group members by means of analysis of questionnaires, in which the employees self-designate their race/ethnicity, gender, and, if applicable, disability category.

(c) “Class(es) of Layoff” means the class(es) designated for a reduction of incumbents through layoff, or demotion in lieu of layoff, under the provisions of Government Code Sections 19997, 19997.8 and 19997.9.

(d) “Department” means the civil service workforce under the appointing power initiating the layoff.

(e) “Relevant Labor Force” means the pool of individuals who possess the requisite qualifications for the classification or occupational group within the geographic area in which the department can reasonably expect to recruit.

NOTE

Authority cited: Sections 18701 and 19231, Government Code. Reference: Sections 11092.5, 12940, 19792, 19798, 19997, 19997.2, 19997.8 and 19997.9, Government Code; and Public Health and Welfare Code, Title 42, Chapter 126, Sections 12101-12117 (Americans with Disabilities Act of 1990 [ADA]).

HISTORY

1. New section filed 7-9-87 as an emergency; operative 7-9-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 11-6-87.

2. Repealed by operation of Government Code section 11346.1(g) (Register 88, No. 26).

3. New section filed 6-16-88; operative 7-16-88 (Register 88, No. 26).

4. Amendment of subsection (b)(4)(G), new subsection (f) and relettering, and amendment of newly designated (g) and NOTE filed 2-24-92; operative 3-25-92 (Register 92, No. 12).

5. Change without regulatory effect amending subsections (a)(4)(G) and (g) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

6. Amendment of subsection (b)(4), repealer of subsections (b)(4)(A)-(G), and amendment of Note filed 10-20-94; operative 11-21-94 (Register 94, No. 42).

7. Amendment of section and Note filed 5-7-2003 subject to partial compliance with the Administrative Procedure Act and limited review by the Office of Administrative Law pursuant to Government Code section 18215; effective on filing pursuant to Government Code section 11343.4 (Register 2003, No. 19).

§471. Layoff Impact Determination.

Note • History

(a) A department undergoing layoff shall provide information to the board to allow the board to determine whether the department is required by federal law to adjust the order of layoff, or whether the department is mandated to conduct a seniority-based layoff, unless a seniority-based layoff would conflict with the provisions of a memorandum of understanding reached pursuant to the Ralph C. Dills Act, Government Code Section 3512 et seq. (Dills Act).

(1) The information to be provided to the board may consist of citation either to any applicable federal authority that requires the department to adjust the order of layoff pursuant to Government Code Section 19798, or to any information that shows that the failure to adjust the order of layoff in accordance with Government Code Section 19798 would result in ineligibility for a federal program and a loss of federal funds.

(2) If the department is subject to no federal authority that would require it to adjust the order of layoff pursuant to Government Code Section 19798, and is not aware of any information that shows that the failure to adjust the order of layoff in accordance with Government Code Section 19798 would result in ineligibility for a federal program and a loss of federal funds, the department may so state in a declaration submitted to the board, and served upon the respective employee organization whose members may be impacted by the layoff.

(b) If the department determines that it is subject to the provisions of Government Code Section 19798, the department shall provide to the board evidence that it served upon the affected employee(s) and respective employee organization(s) notice of the department's determination under subsection 471(a)(1).

(c) If the executive officer determines that the department has demonstrated that it is not required by any federal authority to adjust the order of layoff and is not aware of any information that shows that the failure to adjust the order of layoff in accordance with Government Code Section 19798 would result in ineligibility for a federal program and a loss of federal funds, the layoff review process shall end and the executive officer shall authorize the department to proceed with a seniority-based layoff of employees in the class(es) of layoff, unless a seniority-based layoff would conflict with the provisions of a memorandum of understanding reached pursuant to the Dills Act.

(d) If the executive officer determines pursuant to subsection 471(a)(1) that the department is required by federal law to adjust the order of layoff or that the failure to adjust the order of layoff in accordance with Government Code Section 19798 would result in ineligibility for a federal program and a loss of federal funds, and that therefore an adjustment of the order of layoff may be necessary, the department shall provide the following additional information to the board:

(1) Results of a departmental census survey of all employees in the class(es) of layoff, using SPB 1070, State Employee Race/Ethnicity Questionnaire (7/02), and SPB 131A, State Employee Disability Questionnaire Resurvey (6/01), which are hereby incorporated by reference in their entirety;

(2) Listing of the affected workforce incumbents in seniority order; and

(3) Any additional supporting information.

(e) Using the information provided by the department pursuant to subsections 471(d)(1), (2), and (3), the executive officer shall conduct a data analysis of the composition of the affected labor force by comparing the most relevant labor force representation with the current representation and post-layoff representation. If the analysis establishes that the labor force representation in the affected workforce after layoff would be either substantially the same as it was before such layoff, or equal to its relevant labor force percentage, the executive officer may authorize the department to proceed with a seniority-based layoff of employees in the class(es) of layoff.

(f) If the analysis conducted in subsection 471(e) establishes that the labor force representation after layoff will not be substantially the same as it was before layoff, the executive officer shall conduct an analysis of any evidence of the existence of discrimination in past hiring practices. This analysis shall include, but is not limited to, a review of job-related hiring and recruiting practices, bottom-line hiring and examination data, discrimination or merit issue complaints and appeals, or any other relevant and factual information. If this analysis establishes the possibility of past discriminatory hiring practices in the class(es) of layoff, the executive officer shall schedule a hearing as provided in Section 472.

(g) At any time during the board's review process, the executive officer may authorize a seniority-based layoff of part of the affected workforce in order to retain a sufficient number of employees with the highest seniority scores in the class(es) of layoff so as to maintain the same representation in the affected class(es) as existed prior to the layoff. Such retention shall not alter the order of seniority established for the current layoff.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18654.5, 19790 and 19798, Government Code; and Connerly v. State Personnel Bd. (2001) 92 Cal. App. 4th 16.

HISTORY

1. New section filed 6-5-81; effective thirtieth day thereafter (Register 81, No. 23).

2. Amendment filed 7-9-87 as an emergency; operative 7-9-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 11-6-87.

3. Emergency language filed 7-9-87 repealed by operation of Government Code section 11346.1(f) (Register 88, No. 26).

4. Amendment filed 6-16-88; operative 7-16-88 (Register 88, No. 26).

5. Amendment filed 2-24-92; operative 3-25-92 (Register 92, No. 12).

6. Amendment of section heading, repealer and new section and amendment of Note filed 5-7-2003 subject to partial compliance with the Administrative Procedure Act and limited review by the Office of Administrative Law pursuant to Government Code section 18215; effective on filing pursuant to Government Code section 11343.4 (Register 2003, No. 19).

§471.1. Appeals.

Note • History

All appeals submitted under this section shall be in writing and filed no later than 30 days from the date the affected employee, respective employee organization, or department was notified of the determination or decision of the department or executive officer under Section 471 by the department or the executive officer. Any factual assertions in support of the appeal shall be supported by documentary evidence and/or declarations under penalty of perjury.

(a) Appeal(s) as to the results of the departmental census survey and race/ethnicity, gender, or disability identification of the employee, and appeals as to whether the department is or is not mandated by federal law to adjust the order of layoff or would be at risk of losing federal funding if it does not adjust the order of layoff, shall be filed with the executive officer for resolution. The appeal(s) shall, at a minimum, set forth the legal and factual basis for the appeal(s). The executive officer shall investigate and may request additional information from the filing party and/or the department. If the appellant or the department disagrees with the decision of the executive officer, the appellant or the department may appeal that decision to the board, no later than 30 days from the date of notification of the determination by the executive officer. The board may rule on the appeal with or without a hearing.

(b) Appeal(s) as to the determination by the executive officer to allow the department to proceed with a seniority-based layoff of all or part of the affected workforce shall be filed with the Appeals Division of the State Personnel Board for resolution. The appeal(s) shall, at a minimum, set forth the legal and factual arguments as to why the determination(s) challenged in the appeal is/are improper. The Appeals Division shall be authorized to investigate and may conduct a hearing.

(c) The filing of an appeal pursuant to Section 37 shall not delay the implementation of a decision to proceed with a seniority-based layoff.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19798, Government Code; and Connerly v. State Personnel Bd. (2001) 92 Cal. App. 4th 16.

HISTORY

1. New section filed 5-7-2003 subject to partial compliance with the Administrative Procedure Act and limited review by the Office of Administrative Law pursuant to Government Code section 18215; effective on filing pursuant to Government Code section 11343.4 (Register 2003, No. 19).

§472. Past Hiring Practices Hearing.

Note • History

When required by Section 471 or ordered pursuant to Section 471.1, the board shall conduct a hearing to determine if past discriminatory hiring practices have occurred in the class(es) of layoff.

(a) The executive officer shall give the department and employees in the affected workforce at least 15 days notice of the hearing and shall prepare a written report for the hearing. The report shall include all available data, statistical and otherwise, concerning past hiring practices related to the class(es) of layoff.

(b) Any other party may also present evidence at the hearing concerning past hiring practices related to the class(es) of layoff.

(c) If the board finds that past discriminatory hiring practices related to the class(es) of layoff have occurred, it shall:

(1) Issue Findings of Fact supporting its determination and an order to remedy such discrimination. To the extent permitted by law, such an order may include, but is not limited to, changing the order and/or subdivision(s) of layoff and reemployment so that the relative composition of the affected workforce of that category of employees discriminated against will be, as nearly as possible, the same immediately after the layoff as it was immediately before the layoff for those affected workforce groups.

(2) If the board finds no discrimination in past hiring practices has occurred, it shall issue an order requiring the layoff to continue in the normal order of seniority, unless a seniority-based layoff would conflict with the provisions of a memorandum of understanding reached pursuant to the Dills Act.

NOTE

Authority cited: Sections 18701 and 19702.1, Government Code. Reference: Sections 19790 and 19798, Government Code; and Connerly v. State Personnel Bd. (2001) 92 Cal. App. 4th 16.

HISTORY

1. New section filed 6-5-81; effective thirtieth day thereafter (Register 81, No. 23).

3. Emergency language filed 7-9-87 repealed by operation of Government Code section 11346.1(f) (Register 88, No. 26).

4. Amendment filed 6-16-88; operative 7-16-88 Register 88, No. 26).

5. Amendment of subsections (a) and (b) filed 2-24-92; operative 3-25-92 (Register 92, No. 12).

6. Amendment of section and Note filed 5-7-2003 subject to partial compliance with the Administrative Procedure Act and limited review by the Office of Administrative Law pursuant to Government Code section 18215; effective on filing pursuant to Government Code section 11343.4 (Register 2003, No. 19).

§473. Considerations, Board Determination. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19798, Government Code.

HISTORY

1. New section filed 6-5-81; effective thirtieth day thereafter (Register 81, No. 23).

2. Renumbering and amendment of Section 473 to 472 filed 7-9-87 as an emergency; operative 7-9-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 11-6-87.

3. Emergency language filed 7-9-87 repealed by operation of Government Code Section 11346.1(f) (Register 88, No. 26).

4. Repealer filed 6-16-88; operative 7-16-88 (Register 88, No. 26).

Article 22. Duration Appointments

§500. Effective Date.

Note • History

Under authority of Section 19200 of the Government Code, the provisions of this article shall become effective whenever, subsequent to the adoption of this article, the Governor finds and proclaims that an emergency exists in preparing for the national defense.

NOTE

Reference: Section 19200, Government Code.

HISTORY

1. New Article 22 (§§ 500 to 513, inclusive) filed 11-27-50; designated to be effective when the Governor finds and proclaims that an emergency exists in preparing for the national defense. As of 12-2-50 the Governor has not made such a finding and proclamation (Register 22, No. 3).

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

§501. Scope and Application.

Note • History

The executive officer shall require that appointments shall be made on a duration basis to all classes and positions in the state civil service, during the period these regulations are in effect except that he or she may permit regular appointments and hold regular examinations whenever this would be in the best interests of the State. Unless otherwise provided in these regulations, the regulations governing the status, tenure, and conditions of employment of regular employees shall govern the status and tenure of duration employees.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19100.5, Government Code.

HISTORY

1. Amendment filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).

2. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§502. Definitions.

(a) “Duration appointment” means an appointment made under the provisions of Section 19200 of the Government Code and this article. Any such appointment shall terminate not later than 90 days after the Governor finds and proclaims that for the purposes of Section 19200 of the Government Code an emergency no longer exists.

(b) “Duration open examination” means an open competitive examination held for the express purpose of providing a list of persons available for duration appointment to state civil service positions.

(c) “Duration promotional examination” means a promotional examination held for the express purpose of providing a list of persons available for promotion by duration appointment to state civil service positions.

(d) “Duration employment list” means a duration eligible list, duration subdivisional promotional list, duration departmental promotional list, duration service-wide promotional list, duration departmental reemployment list, duration subdivisional reemployment list, or duration general reemployment list.

(e) “Duration eligible list” means a list of persons who have been examined in a duration open examination and who are eligible for certification only for duration appointment to state civil service positions.

(f) “Duration subdivisional promotional list” means a list of persons eligible for certification for duration appointment to a specific class resulting from a duration promotional examination for a particular subdivision of a state agency.

(g) “Duration departmental promotional list” means a list of persons eligible for certification for duration appointment to a specific class resulting from a duration promotional examination for a particular state agency.

(h) “Duration service-wide promotional list” means a list of persons eligible for certification for duration appointment to a specific class resulting from a duration promotional examination for the entire state service.

(i) “Duration general reemployment list” means a list established for the reemployment by duration appointment of persons in a particular class in any state agency, irrespective of the state agency in which the persons were previously employed.

(j) “Duration departmental reemployment list” means a list established for the reemployment by duration appointment of persons in a particular class in a particular state agency.

(k) “Duration subdivisional reemployment list” means a list established for the reemployment by duration appointment of persons in a particular class in a particular subdivision of a state agency.

(l) “Limited-term duration appointment” means a duration appointment from a duration or regular employment list for a period less than the probationary period.

(m) “Duration employee” means a person legally holding a position in the state civil service by reason of a duration appointment.

(n) “Probationary duration employee” or “duration probationer” means an employee who is serving a probationary period following a duration appointment from a duration or regular employment list.

(o) “Limited-term duration employee” means a duration employee appointed from a duration or regular employment list for a period less than the probationary period.

§503. Duration Examinations.

To establish lists of persons available for duration appointment, the executive officer may hold duration open examinations and duration promotional examinations. Duration employment lists shall not be used in making regular appointments. The regulations governing the conduct of regular examinations shall govern the conduct of duration examinations.

§504. Certification of Eligibles.

History

(a) Duration appointments may be made from regular or duration employment lists. The order of preference of employment lists in certifying eligibles for duration appointment shall be: subdivisional reemployment list, duration subdivisional reemployment list, departmental reemployment list, duration departmental reemployment list, subdivisional promotional list, duration subdivisional promotional list, departmental promotional list, duration departmental promotional list, general reemployment list, duration general reemployment list, service-wide promotional list, duration service-wide promotional list, eligible list, and duration eligible list.

(b) The certification of names from, the establishment of, and the maintenance of each type of duration employment list shall be done in accordance with the regulations that apply to the corresponding regular employment list, except as may be provided otherwise in these regulations.

(c) The acceptance or declination of a duration appointment from a regular employment list shall not affect the rights of an eligible to certification for a regular permanent appointment. The name of an eligible who accepts a duration appointment after certification from a regular employment list shall be retained on that list but the name shall not be certified in the making of additional duration appointments from that employment list.

HISTORY

1. Change without regulatory effect amending subsection (b) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§505. Probationary Period for Duration Appointment.

(a) Duration appointments shall be made subject to the same probation requirements as for regular permanent appointments.

(b) A permanent employee or a duration employee who has completed his probation and who has vacated his position to accept a duration appointment in another class and is rejected during the probationary period shall be reinstated in his former position.

§506. Eligibility for Promotion.

(a) Duration promotional examinations shall be open to permanent employees and duration employees who have completed their probation and shall otherwise be governed by the regulations applicable to regular promotional examinations.

(b) A duration employee shall not be eligible to compete in a regular promotional examination unless immediately preceding his duration appointment he had permanent civil service status in a class designated as appropriate for the examination.

§507. Reports of Performance. [Repealed]

History

HISTORY

1. Repealer filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20).

§508. Counting of Duration Service. [Repealed]

History

HISTORY

1. Repealer filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20).

§509. Layoff. [Repealed]

History

HISTORY

1. Repealer filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20).

§510. Leave of Absence. [Repealed]

History

HISTORY

1. Repealer filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20).

§511. Discipline and Demotion.

The regulations governing the discipline, demotion, rejection, or dismissal of regular probationer or permanent employees shall apply to duration employees.

§512. Reinstatement.

History

Except as otherwise provided in these regulations, the regulations governing reinstatement of probationary or permanent employees shall apply to duration employees.

HISTORY

1. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§513. Termination.

Note • History

(a) All duration appointments, unless sooner terminated by layoff or other means of separation, shall terminate 90 days after the Governor finds and proclaims that, for the purposes of Section 19200 of the Government Code, the emergency no longer exists. No duration employee, nor any person on a duration employment list, shall then be eligible for further state civil service employment except as he may otherwise be legally appointed.

(b) At the termination of a duration appointment, or of a temporary appointment immediately following the duration appointment, an employee who immediately preceding such appointments was a permanent or probationary employee shall be entitled to return to his former position, or a position in his former class in the same agency and in the same locality.

(c) All duration employment lists shall expire 90 days after the Governor finds and proclaims that for purposes of Section 19200 of the Government Code, the emergency no longer exists.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19100, Government Code.

HISTORY

1. Amendment filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).

§520. Personnel Reduction. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18031, 18032 and 18037, Government Code.

HISTORY

1. New section filed 4-3-81; effective thirtieth day thereafter (Register 81, No. 14).

2. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).

3. Repealer filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20).

§521. Reduced Worktime Schedules. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18034(a), (b), (c), Government Code.

HISTORY

1. New section filed 4-3-81; effective thirtieth day thereafter (Register 81, No. 14).

2. Repealer filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20).

§522. Return to Full-Time Work. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18034(d), Government Code.

HISTORY

1. New section filed 4-3-81; effective thirtieth day thereafter (Register 81, No. 14).

2. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).

3. Repealer filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20).

§523. Layoff of Reduced Worktime Employees. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18034(e), 19530-19541, Government Code.

HISTORY

1. New section filed 4-3-81; effective thirtieth day thereafter (Register 81, No. 14).

2. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).

3. Repealer filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20).

§524. Rights of Employees. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18038, and 18714(a), Government Code.

HISTORY

1. New section filed 4-3-81; effective thirtieth day thereafter (Register 81, No. 14).

2. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).

3. Repealer filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20).

§525. Reporting Programs. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18039, Government Code.

HISTORY

1. New section filed 4-3-81; effective thirtieth day thereafter (Register 81, No. 14).

2. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).

3. Repealer filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20).

Article 23. Training [Repealed]

HISTORY

1. Repealer of Article 23 (Sections 530-533, 533.1-533.3 and 534-536) filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).

Article 24. Employer-Employee Relations [Repealed]

HISTORY

1. Repealer of Article 24 (Sections 540, 540.1-540.11 and 543-546) filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35). For prior history of Article 24, including Section 541, see Registers 77, No. 17 and 77, No. 15.

Article 25. Discrimination [Repealed]

HISTORY

1. Repealer of article 25 (sections 547-547.2) filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34). For prior history, see Register 90, No. 22.

Article 26. Mandatory Retirement [Repealed]

HISTORY

1. Article 26 (sections 547.20-547.27) repealed pursuant to Title 1, Section 100(b)(2) of the California Administrative Code (Register 86, No. 28).

Article 27. Discriminatory Employment Practices [Repealed]

HISTORY

1. Change without regulatory effect repealing article 27 (sections 547.30-547.34) filed 6-24-98 pursuant to section 100, title 1 California Code of Regulations (Register 98, No. 26).

Article 28. Limited Examination and Appointment Program

§547.50. Scope.

Note • History

(a) This article shall apply to the alternative category of civil service examination and appointment established for the hiring of individuals with disabilities defined by Section 10. For purposes of this article, the alternative category shall be known as the “Limited Examination and Appointment Program” and referred to as LEAP in the remainder of this article.

(b) Participants in LEAP who receive a temporary appointment to a job classification established to assess their ability to perform in the regular civil service class shall have the same status as regular civil service employees with temporary appointments.

(c) All board regulations shall apply to persons participating in LEAP unless such regulations are in conflict with regulations in this article. If there is such a conflict, the regulations in this article shall apply.

NOTE

Authority cited: Sections 18701 and 19241, Government Code. Reference: Sections 19240-19244, Government Code; and Public Health and Welfare Code, Title 42, Chapter 126, Sections 12101-12117 (Americans with Disabilities Act of 1990 [ADA]).

HISTORY

1. New section filed 5-17-89; operative 6-1-89 (Register 89, No. 21).

2. Change without regulatory effect amending subsections (a) and (c) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

3. Amendment of subsection (a) and Note filed 10-20-94; operative 11-21-94 (Register 94, No. 42).

§547.51. LEAP Eligibility Criteria.

Note • History

(a) Only those applicants who possess the following shall be eligible to participate in the LEAP process:

(1) Written Verification from the California Department of Rehabilitation certifying that the applicant meets the definition of an individual with a disability contained in Section 10; and

(2) The education and experience requirements established by the board for participation in a LEAP classification examination.

(b) Where there is disagreement concerning the applicant's medical qualifications to be LEAP certified as specified in Section (a)(1), the executive officer shall determine the appropriateness of the certification based on the medical evidence submitted.

NOTE

Authority cited: Sections 18701 and 19421, Government Code. Reference: Sections 18931, 19241 and 19242.2, Government Code; and Public Health and Welfare Code, Title 42, Chapter 126, Sections 12101-12117 (Americans with Disabilities Act of 1990 [ADA]).

HISTORY

1. New section filed 5-17-89; operative 6-1-89 (Register 89, No. 21).

2. Amendment filed 2-21-92; operative 3-23-92 (Register 92, No. 12).

3. Change without regulatory effect amending subsection (a) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

4. Amendment of subsection (a)(1) and Note filed 10-20-94; operative 11-21-94 (Register 94, No. 42).

§547.52. LEAP Readiness Evaluations.

Note • History

The education, experience and personal qualifications of LEAP applicants who meet the eligibility requirements of Section 547.51 shall be evaluated by competitive examination to determine readiness for appointment. Those applicants who are ready for immediate employment in a LEAP classification shall be placed on the referral list specified in Government Code Section 19242.2.

NOTE

Authority cited: Section 18701 and 19241, Government Code. Reference: Sections 19242 and 19242.2, Government Code.

HISTORY

1. New section filed 5-17-89; operative 6-1-89 (Register 89, No. 21).

2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

3. Amendment of section heading and section filed 7-14-98; operative 7-14-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 29).

§547.53. Appointment to a LEAP Classification.

Note • History

(a) Appointment to a LEAP classification shall be restricted to those who meet the criteria in Sections 547.51 and 547.52 and who are selected from a referral list as described in Section 19242.2, Government Code.

(b) LEAP eligibles shall remain on the referral list until they are appointed from the list or the list is abolished.

NOTE

Authority cited: Section 18701 and 19241, Government Code. Reference: Section 19242.4, Government Code.

HISTORY

1. New section filed 5-17-89; operative 6-1-89 (Register 89, No. 21).

2. Change without regulatory effect amending subsection (a) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§547.54. LEAP Job Examination Period.

Note • History

(a) Appointment to a LEAP classification constitutes the beginning of a LEAP job examination period. The length of the LEAP job examination period shall be one-third the length of the probationary period of the permanent civil service class to which it is expected that the LEAP candidate will be appointed upon satisfactory completion of the LEAP job examination period unless extended under the provisions of Section 547.55(a) or reduced under the provisions of Section 547.55(b).

(b) Each LEAP candidate, upon appointment, shall be provided by the appointing power with written information which shall identify the specific knowledge, skills and abilities that are to be assessed in order to determine during the LEAP job examination period the candidate's ability to perform the duties of the permanent civil service classification to which appointment is sought.

(c) The executive officer shall determine the appropriate test of fitness for each LEAP classification. This test of fitness shall provide the LEAP candidates with sufficient opportunity to demonstrate that they possess the satisfactory level of knowledge, skill and ability to effectively perform the duties of the regular civil service classification to which appointment is sought.

(d) During the prescribed LEAP job examination period, the appointing power shall evaluate each LEAP candidate's ability to perform satisfactorily the duties of the regular civil service classification to which appointment is sought. LEAP candidate shall receive a written report of evaluation from the appointing power no less than once every four weeks.

NOTE

Authority cited: Sections 18701 and 19241, Government Code. Reference: Sections 19242.4 and 19242.8, Government Code.

HISTORY

1. New section filed 5-17-89; operative 6-1-89 (Register 89, No. 21).

2. Change without regulatory effect amending subsection (a) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§547.55. Extension or Reduction in Job Examination Period.

Note • History

(a) When the executive officer determines that the LEAP candidate has not been given the opportunity to demonstrate knowledge, skill and ability in a specific area identified in Section 547.54(b), the LEAP job examination period shall be extended for a period determined appropriate by the executive officer. Such extensions shall not result in the appointment exceeding the nine-month limit specified in Article VII of the State Constitution.

(b) The LEAP job examination period specified in Section 547.54(a) shall be reduced if the executive officer determines that all of the following apply:

(1) The LEAP candidate held a position in state civil service during twelve-month period prior to the effective date of the LEAP appointment; and

(2) The duties performed in the position in (1) above were equivalent in level of responsibility and requirements of knowledge, skills and abilities to the duties of the position to which the LEAP candidate will be appointed upon completion of the LEAP job examination period; and

(3) The position in (1) above was held by the LEAP candidate for a period of time that equals or exceeds the LEAP job examination period specified in Section 547.54(a); and

(4) The LEAP candidate has written evidence of satisfactory performance in all aspects of the position in (1) above; and

(5) The LEAP candidate's current appointing power requests that the LEAP job examination period be reduced.

(c) If all conditions specified in (b) above are met, the job examination period shall be reduced to a period determined appropriate by the executive officer.

NOTE

Authority cited: Sections 18701 and 19241, Government Code. Reference: Sections 19242.4 and 19243.2, Government Code.

HISTORY

1. New section filed 5-17-89; operative 6-1-89 (Register 89, No. 21).

2. Change without regulatory effect amending section heading and subsections (a), (b) and (b)(3) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§547.56. Transition from LEAP Position to Regular Civil Service Position.

Note • History

(a) The executive officer shall approve the LEAP candidate appointment to the regular civil service classification that corresponds to the LEAP classification if the following conditions are met:

(1) The job examination period specified in Section 547.54(a) has been successfully completed; and

(2) The appointing power submits verification to the executive officer that the LEAP candidate has successfully completed the LEAP job examination period.

(b) If, within 30 days of the end of the job examination period, the appointing power does not either extend the candidate's job examination period in accordance with Government Code Section 19243.2, or terminate the candidate's appointment in accordance with Government Code Section 19243.4, the candidate shall be presumed to have qualified in the examination and shall be appointed to the regular civil service classification effective the day following the last day of the job examination period.

NOTE

Authority cited: Sections 18701 and 19241, Government Code. Reference: Sections 19242.9, 19243, 19243.2, and 19243.4, Government Code.

HISTORY

1. New section filed 5-17-89; operative 6-1-89 (Register 89, No. 21).

2. Amendment of subsection (a)(1), (b) and NOTE filed 2-21-92; operative 3-23-92 (Register 92, No. 12).

3. Change without regulatory effect amending subsection (a)(1) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§547.57. Termination During Job Examination Period.

Note • History

(a) A LEAP candidate's appointment shall be terminated by the appointing power during or no later than 30 days following completion of the LEAP job examination period for failure to meet conditions for appointment provided in Section 547.53; failure to satisfactorily demonstrate the level of knowledge, skill and ability required by Section 547.54; for other reasons relating to the candidate's qualifications; for the good of the service; or for failure to demonstrate merit, efficiency, fitness including medical condition, or moral responsibility; but he or she shall not be terminated for any cause constituting prohibited discrimination as set forth in Government Code Sections 19700 to 19703, inclusive.

(b) A LEAP candidate whose appointment is terminated shall be given written notice by the appointing power of the proposed action at least five working days prior to the effective date of the termination. Such notice shall specify the reasons for the termination, the right to respond to the appointing power and the right to appeal the action to the State Personnel Board under the provisions of Sections 51-54.2.

(c) An appeal from termination shall be assigned to the hearing office process as defined in Section 52. The provisions of Government Code Sections 19574.1, 19574.2, 19579, 19580, 19581, and 19581.5 shall apply in the disposition of an appeal.

(d) To resolve the appeal, the board shall do one of the following:

(1) Affirm the action of the appointing power.

(2) Modify the action of the appointing power.

(3) Restore the name of the appellant to the LEAP referral list from which appointed.

(4) Restore the appellant to the position from which he or she was terminated but this shall be done only if the board determines, after hearing, that there is no substantial evidence to support the reason or reasons for termination, or that the termination was made in fraud or bad faith. At any such hearing, the appellant shall have the burden of proof; subject to rebuttal by him or her, it shall presumed that the termination was free from fraud and bad faith and that the statement of reasons therefor in the notice of termination is true.

(e) If the board restores a terminated LEAP candidate to his or her position, it shall direct the payment of salary to the employee for such period of time as the termination was improperly in effect as prescribed in Government Code Section 19180.

(f) The board, by decision or upon written request of a LEAP candidate whose appointment is terminated for reasons relating to the LEAP candidate's ability to demonstrate the knowledge, skill, and ability required by Section 547.54 and who is legally eligible for appointment in accordance with Section 547.53, shall restore the name of the LEAP candidate to the LEAP referral list from which appointed for the remaining period of eligibility.

NOTE

Authority cited: Sections 18701 and 19241, Government Code. Reference: Sections 19180, 19243.4, 19244, 19574.1, 19574.2, 19579, 19580, 19581, and 19581.5, Government Code.

HISTORY

1. New section filed 5-17-89; operative 6-1-89 (Register 89, No. 21).

2. Amendment filed 2-21-92; operative 3-23-92 (Register 92, No. 12).

3. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

Subchapter 1.5. Personal Services Contracts

Article 1. Definitions

§547.59. Definition of a Personal Services Contract.

Note • History

(a) A “Personal Services Contract” is defined as any contract, requisition, purchase order, etc. (except public works contracts) under which labor or personal services is a significant, separately identifiable element. The business or person performing these contractual services must be an independent contractor that does not have status as an employee of the State.

(b) A “cost-savings based Personal Services Contract” is any Personal Services Contract proposed to achieve cost savings and subject to the provisions of Government Code Section 19130(a).

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19130, Government Code.

HISTORY

1. Change without regulatory effect renumbering and amending former section 279.1 to section 547.59 filed 12-1-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 49).

2. Editorial correction providing correct placement for section 547.59 in subchapter 1.5, article 1 (Register 99, No. 51).

3. Change without regulatory effect renumbering and relocating former article 1 heading to article 2 and adopting new article 1 heading filed 2-7-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 6).

Article 2. Procedures for Reviewing Personal Services Contracts Proposed or Entered Into Pursuant to Government Code §19130(b)

§547.60. Standard and Control for Approval of Contracts.

Note • History

When a state agency requests approval from the Department of General Services for a contract let under Government Code §19130(b), the agency shall include with its contract transmittal a written justification that includes specific and detailed factual information that demonstrates how the contract meets one or more of the conditions specified in Government Code §19130(b).

NOTE

Authority cited: Section 10337(a), Public Contract Code; and Section 18701, Government Code. Reference: Section 19130, Government Code.

HISTORY

1. New subchapter 1.5 (articles 1-3), article 1 (sections 547.60-547.63) and section filed 5-3-99; operative 5-3-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 19).

2. Change without regulatory effect renumbering and relocating former article 1 heading to article 2 filed 2-7-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 6).

§547.61. Employee Organization's Request for Review.

Note • History

(a) Any employee organization that represents state employees may request that the board review a contract proposed or executed by a state agency pursuant to Government Code §19130(b) by filing with the board and serving upon the state agency a written request for review. The employee organization's request for review shall identify the contract to be reviewed and include the following:

(1) specific and detailed factual information that demonstrates how the contract fails to meet the conditions specified in Government Code §19130(b); and

(2) documentary evidence and/or declarations in support of the employee organization's position.

(b) The employee organization shall file a proof of service with the board that states when and how it served a copy of its request for review upon the state agency.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19130 and 19132, Government Code; and Section 10337, Public Contract Code.

HISTORY

1. New section filed 5-3-99; operative 5-3-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 19).

§547.62. State Agency's Response.

Note • History

Within 7 days after the state agency receives a copy of the employee organization's request for review, the state agency shall serve a copy of that request upon the contractor(s) to the disputed contract. Within 15 days after the state agency receives a copy of the employee organization's request for review, the state agency shall file with the board and serve upon the employee organization:

(a) a copy of the proposed or executed contract; and

(b) the state agency's written response to the employee organization's request for review, which shall include:

(1) specific and detailed factual information that demonstrates how the contract meets one or more of the conditions specified in Government Code §19130(b); and

(2) documentary evidence and/or declarations in support of the state agency's position.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19130 and 19132, Government Code; and Section 10337, Public Contract Code.

HISTORY

1. New section filed 5-3-99; operative 5-3-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 19).

§547.63. Employee Organization's Reply.

Note • History

Within 5 days after it receives from the state agency a copy of the contract and the state agency's response, an employee organization may file with the board and serve upon the state agency a written reply to the state agency's response.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19130 and 19132, Government Code; and Section 10337, Public Contract Code.

HISTORY

1. New section filed 5-3-99; operative 5-3-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 19).

Article 3. Supplemental Procedures for Reviewing Personal Services Contracts Executed Under Either Government Code §19130(a) or §19130(b)

§547.64. Executive Officer Decision.

Note • History

Within 30 days after receiving a copy of the proposed or executed contract, the executive officer shall do one of the following:

(a) If the employee organization has shown that good cause exists for referring the disputed contract for a hearing for the purpose of taking evidence and hearing arguments, the executive officer, in accordance with §547.65, shall refer the matter to an administrative law judge or other authorized representative of the board to conduct an evidentiary hearing and submit a proposed decision; or

(b) If the employee organization has not shown that good cause exists for referring the disputed contract for a hearing for the purpose of taking evidence and hearing arguments, the executive officer shall issue a written decision either approving or disapproving the contract and explaining the reasons for the decision. The executive officer shall promptly give notice of his decision to all parties.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19130 and 19132, Government Code; and Section 10337, Public Contract Code.

HISTORY

1. New article 2 (sections 547.64-547.65) and section filed 5-3-99; operative 5-3-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 19).

2. Change without regulatory effect renumbering former article 2 heading to article 3 filed 2-7-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 6).

§547.65. Evidentiary Hearing.

Note • History

(a) Request for a Board Hearing. The employee organization may request that, in lieu of the executive officer making a decision approving or disapproving the disputed contract, the disputed contract be referred to the board for a hearing. To make such a request, the employee organization shall include with its request for review written arguments, evidence, and/or declarations that show good cause exists for scheduling a hearing for the purpose of receiving evidence and hearing arguments concerning the propriety of the disputed contract.

(b) Good Cause. In order to show that good cause exists for referring the disputed contract for a hearing for the purpose of taking evidence and hearing arguments, the employee organization must show that there are disputed issues of material fact regarding the contract that must be resolved before a determination is made as to whether the disputed contract meets the criteria of Government Code §19130 and that an evidentiary hearing is necessary to resolve these disputed issues of material fact.

(c) Executive Officer Determination. The determination as to whether the employee organization has shown that good cause exists for referring the disputed contract for an evidentiary hearing shall be made by the executive officer. If the executive officer determines that good cause does not exist for referring the disputed contract for an evidentiary hearing, the contract review process shall proceed as an investigation, and the executive officer shall issue a decision approving or disapproving the contract.

(d) Conduct of an Evidentiary Hearing. Upon finding that the employee organization has shown good cause for referring the disputed contract for an evidentiary hearing, the executive officer shall refer the contract to an administrative law judge or other authorized representative of the board to conduct an evidentiary hearing and submit a proposed decision to the board in accordance with the procedures set forth in Government Code, Title 2, Division 5, Part 2, Chapter 2, Article 2 (commencing with §18670) and Chapter 7, Article 1 (commencing with §19570), and the board regulations promulgated thereunder.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19130, 19131 and 19132, Government Code; and Section 10337, Public Contract Code.

HISTORY

1. New section filed 5-3-99; operative 5-3-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 19).

Article 4. Procedures for Appealing an Executive Officer's Decision Approving or Disapproving a Contract Under Government Code §19130(a) or §19130(b) to the Board

§547.66. Appeal from an Executive Officer's Decision.

Note • History

Any party may appeal the executive officer's decision to the board by filing a written request with the board within 30 days after issuance of the executive officer's decision. (See §547.64(b).) Upon receipt of a timely appeal, the executive officer shall schedule the matter for briefing and oral arguments before the board. The board will decide the appeal upon the factual information, documentary evidence, and declarations submitted to the executive officer before he or she issued his or her decision. Upon the objection of a party, the board will not accept additional factual information, documentary evidence, or declarations that were not previously filed with the executive officer if the board finds that the submission of this additional factual information, documentary evidence, or declarations would be unduly prejudicial to the objecting party.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18654.5, 18670, 19130, 19131 and 19132, Government Code; and Section 10337, Public Contract Code.

HISTORY

1. New article 3 (section 547.66) and section filed 5-3-99; operative 5-3-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 19).

2. Change without regulatory effect renumbering former article 3 heading to article 4 filed 2-7-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 6).

Article 5. Procedures that Apply to Review Proceedings for Contracts Executed Under Government Code §19130(a) or §19130(b)

§547.67. General Procedures.

Note • History

(a) Continuances and Extensions. The executive officer may grant continuances of oral arguments before the board and extensions of time for briefs or other documents for those oral arguments upon the consent of all parties or for good cause shown.

(b) Filing. Requests for review, agency responses, briefs, and other documents may be filed with the board by facsimile sent to the chief counsel's office. A document will be considered filed with the board when the board actually receives it.

(c) Service. Requests for review, agency responses, briefs and other documents shall be served upon all other parties by personal delivery, facsimile, telecopy, express mail or other means designed to ensure that they are received by the other parties on the same day they are filed with the board.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18670, 19130, 19131 and 19132, Government Code; and Section 10337, Public Contract Code.

HISTORY

1. New article 4 (sections 547.67-547.68) and section filed 5-3-99; operative 5-3-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 19).

2. Change without regulatory effect renumbering former article 4 heading to article 5 filed 2-7-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 6).

§547.68. Intervention.

Note • History

(a) At any time after an employee organization requests that that board review a contract for compliance with Government Code §19130(a) or §19130(b), a contractor to the disputed contract may move to intervene as a party in the contract review process. Either the executive officer, administrative law judge or authorized representative who conducts an evidentiary hearing, or board, may grant a motion for intervention if all the following conditions are satisfied:

(1) A written motion is filed with the board, with copies served upon the state agency and the employee organization.

(2) The motion is made as early as practicable.

(3) The motion states facts demonstrating that the applicant has an interest in the disputed contract that may be affected by a decision upon that contract or that the applicant qualifies as an intervenor under a statute or regulation.

(4) The executive officer, administrative law judge, authorized representative or board determines that the interests of justice and the orderly and prompt conduct of the contract review process will not be impaired by allowing the intervention.

(b) If an applicant qualifies for intervention, the executive officer, administrative law judge, authorized representative or board may impose conditions on the intervenor's participation in the contract review process, either at the time that intervention is granted or at a subsequent time. Conditions include, but are not limited to, the following:

(1) Limiting the intervenor's participation to designated issues in which the intervenor has a particular interest demonstrated by the motion.

(2) Limiting or excluding the intervenor's participation in any proceedings so as to promote the orderly and prompt conduct of the executive officer's investigation, the administrative law judge's or authorized representative's evidentiary hearing, or the oral arguments before the board.

(3) Requiring two or more intervenors to combine their presentations of evidence and arguments, and other participation during the executive officer's investigation, the administrative law judge's or authorized representative's evidentiary hearing, or oral arguments before the board.

(4) Limiting or excluding the intervenor's participation in settlement negotiations.

(c) As early as practicable in advance of the executive officer's investigation, the administrative law judge's or authorized representative's evidentiary hearing, or oral arguments before the board, the executive officer, administrative law judge, authorized representative or board shall issue an order granting or denying the motion for intervention, specifying any conditions, and briefly stating the reasons for the order. The executive officer, administrative law judge, authorized representative or board may modify the order at any time, stating the reasons for the modification. The executive officer, administrative law judge, authorized representative or board shall promptly give notice of an order granting, denying, or modifying intervention to the applicant and to all parties.

(d) Whether the interests of justice and the orderly and prompt conduct of the contract review process shall be impaired by allowing intervention is a determination to be made in the sole discretion, and based on the knowledge and judgment at that time, of the executive officer, administrative law judge, authorized representative or board. The determination is not subject to administrative or judicial review.

(e) If a contractor's motion for intervention is denied, the executive officer, administrative law judge, authorized representative or board may permit that contractor to submit written arguments and participate in the executive officer's investigation, the evidentiary hearing before the administrative law judge or authorized representative, or oral arguments before the board as the executive officer, administrative law judge, authorized representative or board may deem appropriate under the circumstances.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 11440.50, 19130, 19131 and 19132, Government Code; and Section 10337, Public Contract Code.

HISTORY

1. New section filed 5-3-99; operative 5-3-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 19).

2. Change without regulatory effect correcting reference citation to Government Code section 11440.50 filed 5-4-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 19).

Article 6. Procedures that Apply to Contracts Under Government Code §19130(a)

§547.69. State Agency Notice of Intent to Execute Cost Savings Personal Services Contract.

Note • History

(a) Any state agency proposing to execute a contract pursuant to Government Code section 19130(a), shall file with the board a Notice of Intent to Execute Personal Services Contract.

(b) The Notice of Intent shall include the following:

(1) A complete copy of the proposed contract;

(2) The following information with respect to those civil service employees who would otherwise perform the services to be rendered under the contract:

(A) The number of civil service employees in each classification who would otherwise perform the services;

(B) The number of hours required for each civil service employee to perform the services;

(C) The base hourly wage, as set forth in the State of California Civil Service Pay Scale, that the agency would be required to pay civil service employees to perform those services to be rendered under the contract.

(i) The cost of any employee benefits, as set forth in section (b)(2)(D), direct overhead costs, as set forth in section (b)(2)(E), indirect overhead costs, as set forth in section (b)(2)(F), or any other costs, shall not be included in the base hourly wage calculation, unless specifically authorized by this section;

(ii) The cost of any recruitment or retention pay bonus or differential, or any geographic pay bonus or differential, that the agency is required by law or collective bargaining agreement to pay to employ civil service employees to perform those services to be rendered under the contract, shall be calculated as part of the base hourly wage. If the bonus or differential is disbursed as a lump sum payment, the cost of the bonus or differential shall be amortized over the term of the proposed contract. The cost of any remuneration paid to an employee due to the employee possessing specialized skills or abilities (e.g., bilingual verbal and written skills), shall not be included as part of the base hourly wage, unless the specialized skill or ability is a prerequisite for employment in the civil service position that performs those services to be rendered under the contract. The state agency shall provide detailed, factual information concerning its assertion that it is required to pay any recruitment or retention pay bonus or differential, or any geographic pay bonus or differential, or that it incurs any additional costs to compensate individuals with specialized skills or abilities, in order to employ civil service employees to perform those services to be rendered under the contract.

(D) The hourly cost of employee benefits the agency would be required to provide to each civil service employee to perform those services to be rendered under the contract.

(i) For those proposed contracts not subject to the provisions of Government Code section 19134, employee benefits shall be itemized and limited to the following: health insurance premiums; dental insurance premiums; vision insurance premiums; employer contributions to employee retirement plans, including social security; paid holidays; sick leave benefits; and vacation leave benefits. For purposes of this section, hourly benefit costs shall be derived by calculating the annual cost per employee for each specified benefit, divided by the number of hours each employee is employed on an annual basis. The state agency shall also disclose the basis for, and methodology utilized, in arriving at its conclusions as to the annual cost for each specified employee benefit;

(ii) For those proposed contracts subject to the provisions of Government Code section 19134, hourly benefit costs shall be established using rates based on single employee, employee plus one dependent, and employee plus two or more dependents, or the costs may be based on a blended rate, as set forth in the “Personal Services Contract Pay Rates” published by the Department of Personnel Administration. To the extent that the hourly benefit rates established by the Department of Personnel Administration consist of items that would otherwise be categorized under the base hourly wage, direct overhead cost, or indirect overhead cost provisions of this section, the agency may only include those items as hourly benefit costs;

(E) The hourly cost of direct overhead costs the state agency would incur if it employed civil service employees to perform those services to be rendered under the contract.

(i) For purposes of this section, direct overhead costs shall be itemized and include, but not be limited to, the following: workers compensation insurance budget costs; unemployment insurance budget costs; disability insurance budget costs; additional rent and utilities that would only be incurred if the services in question were performed by the civil service; additional equipment and materials needed to perform those services to be rendered under the contract that would only be incurred if the services in question were performed by the civil service; uniforms; training mandated by law or otherwise required by the agency; background investigations, medical examinations, or drug testing, mandated by law or otherwise required by the agency; and reimbursement for licenses, certificates, or similar requirements needed before a civil service employee can perform those services to be rendered under the contract. For purposes of this section, hourly direct overhead costs shall be derived by calculating the annual cost per employee for each specified direct overhead cost, divided by the number of hours each employee is employed on an annual basis. The state agency shall also disclose the basis for, and methodology utilized, in arriving at its conclusions as to the annual cost for each specified direct overhead cost;

(ii) The cost of any equipment necessary to perform the contracted-for services claimed as a direct overhead cost shall be calculated by establishing the cost incurred each year by the contracting agency for the use of the equipment. (For example, a laptop computer purchased at an initial cost of $2,000.00, depreciates at a rate of $500.00 per year for each year of use. For a contract of three years duration, the state agency can claim computer equipment costs of $500.00 per year, for a total contract cost of $1,500.00.) If the equipment is leased, the contracting agency can claim the annual lease cost of the equipment as an annual direct overhead cost. The state agency shall disclose the basis for, and methodology utilized, in arriving at its conclusions as to the annual cost for each piece of equipment identified as a direct overhead cost incurred in the performance of the contracted-for services.

(iii) The cost of any uniforms claimed as a direct overhead cost shall be calculated by establishing the cost incurred each year by the contracting agency for the purchase of uniforms. (For example, for a contract of four years duration, the state agency purchases uniforms for each civil service employee at a cost of $200.00 during the first year of the contract, and $200.00 during the third year of the contract, for a total of $400.00 during the four year contract term. The state agency can claim $100.00 per employee, per year, in uniform costs.) In those instances where the civil service employee receives an annual uniform allowance, the annual uniform allowance shall be allowed as a direct overhead cost. The state agency shall disclose the basis for, and methodology utilized, in arriving at its conclusions as to the annual cost for each uniform cost identified as a direct overhead cost.

(iv) Any other costs incurred by the state agency when employing civil service employees to perform the contracted-for services, and claimed by the state agency as a direct overhead cost, including, but not limited to, the cost of background investigations, medical examinations, drug testing, license procurement, certificate procurement, or training, shall be calculated by establishing the cost incurred each year by the contracting agency for each cost claimed. (For example, for a contract of four years duration, the state agency conducts drug testing for each civil service employee at a cost of $200.00 during the first year of the contract, and $200.00 during the third year of the contract, for a total of $400.00 during the four year contract term. The state agency can claim $100.00 per employee, per year, in drug testing costs.) The state agency shall disclose the basis for, and methodology utilized, in arriving at its conclusions as to the annual cost for each expense identified as a direct overhead cost.

(F) The hourly cost of indirect overhead costs the state agency would incur if civil service employees were to perform those services to be rendered under the contract. Indirect costs shall not be included unless the cost can be attributed solely to the function in question and would not exist if that function were not performed in state service.

(i) For purposes of this section, indirect overhead costs shall be itemized and include, but not be limited to, the following: the pro rata share of existing administrative salaries and benefits (including managers who do not directly supervise the civil service employees performing those services to be rendered under the contract, human resources staff who process the recruitment, hiring, and separation of the civil service employees performing those services to be rendered under the contract, and executive management staff who have oversight of the program(s) impacted by the contract), rent, utilities, equipment costs and materials. For purposes of this section, hourly indirect overhead costs shall be derived by calculating the annual pro rata cost per employee for each specified indirect overhead cost incurred as a result of the agency performing those services to be rendered under the contract, divided by the number of hours each employee is employed on an annual basis. The state agency shall also disclose the basis for, and methodology utilized, in arriving at its conclusions as to the annual cost for each specified indirect overhead cost;

(G) The total hourly cost, based on those costs set forth in subdivisions (C) through (F), the state agency would incur for each civil service employee, if civil service employees were to perform those services to be rendered under the contract.

(H) A statement explaining why existing civil service employees cannot be re-directed or otherwise utilized to perform those services to be rendered under the contract.

(3) The following information with respect to the contract employees who are to perform the services to be rendered under the contract:

(A) The number of employees required to perform each of the services to be rendered under the contract;

(B) The number of hours each employee shall perform services under the contract;

(C) The base hourly wage that will be paid to each contract employee performing a function under the contract that would otherwise be performed by the civil service.

(i) The contractor shall verify that the cost of any employee benefits, as set forth in section (b)(3)(D), direct overhead costs, as set forth in section (b)(3)(E), or any other costs incurred by the contractor, shall not be included in the base hourly wage calculation, unless specifically authorized by this section. The contractor shall also verify that it is in compliance with all applicable state and federal labor laws;

(ii) The cost of any recruitment or retention pay bonus or differential, or any geographic pay bonus or differential, that the contractor is required to pay to employ private employees to perform those services to be rendered under the contract, shall be calculated as part of the base hourly wage. If the bonus or differential is disbursed as a lump payment, the cost of the bonus or differential shall be amortized over the term of the proposed contract. The cost of any remuneration paid to an employee due to the employee possessing specialized skills or abilities (e.g., bilingual verbal and written skills), shall not be included as part of the base hourly wage, unless the specialized skill or ability is a prerequisite to perform those services to be rendered under the contract. The state agency shall provide detailed, factual information concerning its assertion that the contractor is required to pay any recruitment or retention pay bonus or differential, or any geographic pay bonus or differential, or that the contractor incurs any additional costs to compensate individuals with specialized skills or abilities, in order to employ private employees to perform those services to be rendered under the contract.

(D) The hourly cost of employee benefits that will be provided to each contract employee.

(i) For those proposed contracts not subject to the provisions of Government Code section 19134, employee benefits shall be itemized and limited as set forth in section (b)(2)(D)(i), supra;

(ii) For those proposed contracts subject to the provisions of Government Code section 19134, hourly benefit costs shall be established as set forth in Section (b)(2)(D)(ii), supra;

(iii) Pursuant to Government Code section 19134, subdivision (d), if, in lieu of providing actual benefits as listed in subdivision (b)(3)(D)(i) of this section, the private contractor intends to provide a cash equivalent, the amount of the cash equivalent shall be equal to the applicable determination under subdivision (b)(3)(D)(ii) of this section;

(E) The hourly cost of direct overhead costs the private contractor will incur for each employee employed under the contract.

(i) For purposes of this section, direct overhead costs shall be itemized and include, but not be limited to, those items set forth in Section (b)(2)(E)(i) and (ii), supra;

(F) The total hourly amount the private contractor will charge the state agency for each contract employee to perform those services to be rendered under the contract.

(G) The annual costs the state agency will incur for activities related to inspection, supervision and monitoring activities to ensure proper administration of the contract. Inspection, supervision, and monitoring costs shall include, but not be limited to, the pro rata share of existing administrative salaries and benefits necessary for supervising and monitoring the contract, including costs associated with personnel supervision, invoice review, and the contract bidding process. Inspection, supervision and monitoring costs shall also include additional security or other risk costs incurred by the agency as a result of the contract. The state agency shall disclose the basis for, and methodology utilized, in arriving at its conclusions as to the annual contract inspection, supervision and monitoring costs, and specify the number of hours expended annually by agency staff, on a position-by-position basis, on contract inspection, supervision and monitoring duties. If no costs are claimed for oversight, the state agency shall provide the factual basis for its assertion;

(4) The industry level hourly wage for those services to be rendered under the contract. The term “industry level hourly wage “ as used in this section means the prevailing hourly rate of pay for the type of work in question in the local area where the contract would be let, as measured by reliable and statistically representative wage surveys such as those conducted by the Department of Industrial Relations or the Bureau of Labor Statistics. In the event that the most recent relevant wage survey data published by the Department of Industrial Relations differs from the wage survey data published by the Bureau of Labor Statistics, the board shall rely upon the wage survey data published by the Department of Industrial Relations, unless the wage survey data published by the Bureau of Labor Statistics is based on more recent information. The state agency shall identify the wage survey utilized and the date it was issued, and shall specify whether the wage is calculated in terms of mean or median wage.

(5) That the contract will not result in the displacement of civil service employees.

(A) For purposes of this section, displacement shall be limited to: layoff; involuntary demotion; involuntary transfer to a new class; involuntary transfer to a new location requiring a change of residence, and as defined in Department of Personnel dministration regulations; and time base reductions. Displacement does not include: changes in shifts or days off; reassignment to other positions within the same class and general geographic location;

(6) That the contract will not have an adverse impact on State Equal Employment Opportunity efforts, as set forth in Section 547.74;

(7) That the contract was awarded through a publicized, competitive bidding process;

(8) That the contract includes specific provisions pertaining to the qualifications of the staff who will perform each aspect of the work under the contract, as well as assurances that the contractor's hiring practices meet applicable nondiscrimination standards;

(9) That the potential for future economic risk to the state from potential contractor rate increases is minimal.

(10) That the contract is with a firm.

(A) A firm means a corporation, partnership, nonprofit organization, or sole proprietorship; and

(11) That the potential economic advantage of contracting is not outweighed by the public's interest in having a particular function performed directly by the state government.

(12) The state agency shall submit documentary evidence and/or declarations in support of the information provided by the state agency in accordance with the requirements of subsections (2) through (11).

(c) The board shall, within 5 days of receipt of the Notice of Intent to Execute Personal Services contract, forward a copy of the Notice to the employee organization(s) that represent(s) those civil service employees who would otherwise perform those duties to be rendered under the contract.

NOTE

Authority cited: Sections 18211, 18216 and 18701, Government Code. Reference: Sections 18670, 19130, 19131 and 19134, Government Code; and Section 10337, Public Contract Code.

HISTORY

1. Change without regulatory effect adding new article 5 (sections 547.69-547.71) and renumbering former section 279.2 to section 547.69 filed 12-1-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 49).

2. Change without regulatory effect renumbering former article 5 heading to article 6 filed 2-7-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 6).

3. Amendment of article heading, renumbering of former section 547.69 to section 547.72 and new section 547.69 filed 1-3-2008; operative 2-2-2008 (Register 2008, No. 1).

§547.70. Employee Organization's Request for Review.

Note • History

(a) Any employee organization that receives notification from the board, pursuant to Government Code section 19131, of a state agency's Notice of Intent to Execute Personal Services contract shall, within 15 days of the date of such notice having been mailed to the employee organization, be entitled to file with the board and to serve upon the state agency, a request for review of the contract for compliance with the requirements of Government Code section 19130(a). The employee organization's request for review shall identify the contract to be reviewed and include the following:

(1) Specific and detailed factual information that demonstrates how the contract fails to meet the conditions specified in Government Code section 19130(a); and

(2) Documentary evidence and/or declarations in support of the employee organization's position.

(b) The employee organization shall file a proof of service with the board that states when and how it served a copy of its request for review upon the state agency.

NOTE

Authority cited: Sections 18211, 18216 and 18701, Government Code. Reference: Sections 18670, 19130, 19131 and 19134, Government Code; and Section 10337, Public Contract Code.

HISTORY

1. Change without regulatory effect renumbering and amending former section 279.3 to section 547.70 filed 12-1-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 49).

2. Renumbering of former section 547.70 to section 547.74 and new section 547.70 filed 1-3-2008; operative 2-2-2008 (Register 2008, No. 1).

§547.71. State Agency Reply.

Note • History

(a) Within 10 days after receipt of service of the employee organization's request for review, the state agency may file with the board and serve upon the employee organization and the proposed contractor(s) a written reply to the employee organization's request.

(b) The state agency shall file a proof of service with the board that states when and how it served a copy of its reply upon the employee organization and the proposed contractor(s).

NOTE

Authority cited: Sections 18211, 18216 and 18701, Government Code. Reference: Sections 18670, 19130, 19131 and 19134, Government Code; and Section 10337, Public Contract Code.

HISTORY

1. Change without regulatory effect renumbering and amending former section 279.4 to section 547.71 filed 12-1-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 49).

2. Renumbering of former section 547.71 to section 547.73 and new section 547.71 filed 1-3-2008; operative 2-2-2008 (Register 2008, No. 1).

§547.72. Undercut of State's Wage in Cost-Savings Based Contracts.

Note • History

When a Personal Services Contract is based on cost savings, a contractor's wages shall be at or above the industry's level and shall not undercut the State's pay rate for comparable work by more than 15%, except that if in a nonmetropolitan area of the State the contractor's rate of pay is more than 15% below the state rate, the contract may be approved if the contractors rate of pay is closer to the State rate than it is to the comparable industry rate in the local area. In no case shall a contractor's wages be more than 25% below the State's pay rate. Comparison of wages for this purpose shall not include the cost of benefits.

(a) Comparison of the contractor's and State's hourly rates will be made as follows:

(1) For contracts of one year or less duration, comparison shall be to the first step of the salary range of the class designated as the type of work performed by the Personal Services Contract except for classes with a special in-grade salary adjustment (SISA). In this case, comparison shall be made to the midpoint between the first and second steps.

(2) For contracts with durations of over one year up to two years, comparison shall be to the midpoint between the first and second steps of the salary range of the class designated as the type of work performed by Personal Services Contract except for classes with a SISA. Comparison in this case shall be made to the second step.

(3) For contracts with durations of over two years, comparison shall be to the second step of the salary range of the class designated as the type of work performed by Personal Services Contract.

(b) Cost-savings based Personal Services Contracts with duration of more than one year shall contain a clause indicating that in the event of an increase in the State's pay rates, the contractor's wage rate will be reviewed and adjusted in subsequent years of the contract so as not to exceed the relationship with State and industry rates identified in the first paragraph of this section.

(c) The term “industry rate” as used in this section means the prevailing hourly rate of pay for the type of work in question in the local area where the contract would be let, as measured by reliable and statistically representative wage surveys such as those conducted by the Bureau of Labor Statistics or the Department of Industrial Relations. In the event that the most recent relevant wage survey data published by the Department of Industrial Relations differs from the wage survey data published by the Bureau of Labor Statistics, the board shall rely upon the wage survey data published by the Department of Industrial Relations, unless the wage survey data published by the Bureau of Labor Statistics is based on more recent information.

NOTE

Authority cited: Sections 18211, 18216 and 18701, Government Code. Reference: Section 19130(a)(2), Government Code.

HISTORY

1. Renumbering of former section 547.69 to section 547.72, including amendment of subsection (c) and Note, filed 1-3-2008; operative 2-2-2008 (Register 2008, No. 1).

§547.73. Amount of Savings

Note • History

(a) Savings generated through cost-savings based personal services contracting must justify the size and duration of the contracting agreement. To do so, such contracts must meet one of the following criteria:

(1) Achieve a savings of 10% or more compared to the cost of performing the same function within the civil service over the duration of the contract; or

(2) Achieve a savings of at least $50,000, in terms of 1988 dollars, per year compared to the cost of performing the same function within the civil service over the duration of the contract, provided that the savings equal at least 5% of the comparable civil service cost. The $50,000 standard shall be adjusted at the beginning of each fiscal year to reflect changes in the California Consumer Price Index as reported by the Department of Industrial Relations, and the adjusted figure shall be communicated by Board staff to all departments.

(b) Such savings need not be attained during each year of a multiyear contract, providing the overall savings meet one of the aforestated requirements.

NOTE

Authority cited: Sections 18211, 18216 and 18701, Government Code. Reference: Sections 19130(a)(5) and 19130(a)(6), Government Code.

HISTORY

1. Renumbering of former section 547.71 to section 547.73, including amendment of Note, filed 1-3-2008; operative 2-2-2008 (Register 2008, No. 1).

§547.74. Equal Employment Opportunity Impact.

Note • History

No state agency may enter into a cost savings contract under Section 19130, subdivision (a) unless the agency can establish:

(a) Approval of the contract will not unreasonably interfere with the ability of the agency to comply with its equal employment opportunity plan; and

(b) The contractor is in compliance with the statutes and regulations administered by the Department of Fair Employment and Housing.

NOTE

Authority cited: Sections 18211, 18216 and 18701, Government Code. Reference: Sections 11135-11139.8, 19130(a)(4), 19130(a)(8), 19790, 19791, 19793, 19794, 19797 and 19798.5, Government Code; and Section 1431, Labor Code.

HISTORY

1. Renumbering of former section 547.70 to section 547.74, including amendment of section heading, repealer and new section and amendment of Note, filed 1-3-2008; operative 2-2-2008 (Register 2008, No. 1).

Subchapter 1.7. Equal Employment Opportunity Program

Article 1. State Work Force Data Collection and Evaluation

§547.80. Definitions.

Note • History

The following definitions shall be used for work force data collection and evaluation of equal employment opportunity within state civil service, including those activities related to layoff:

(a) “Class” means a group of positions as defined in Government Code Section 18523.

(b) “Racial/Ethnic Group” includes persons who are members of one of the following groups: American Indian/Native American, Asian, Black/African American, Filipino, Hispanic, Pacific Islander, and White. These groups are defined as follows:

(1) “American Indian/Native American” means any person who is a member of an American Indian Tribe or band recognized by the Federal Bureau of Indian Affairs, or has at least one-quarter American Indian blood quantum of tribes or bands indigenous to the United States or Canada.

(2) “Asian” means any person whose origin is the Far East, Southeast Asian or the Indian subcontinent and includes, for example, China, Japan, and Korea.

(3) “Black/African American” means any person whose origin is any of the Black racial groups of Africa.

(4) “Filipino” means any person whose origin is the Philippine Islands.

(5) “Hispanic” means any person whose origin is Mexico, Puerto Rico, Cuba, Spain, or the Spanish-speaking countries of Central or South America. It does not include persons of Portuguese or Brazilian origin, or persons who acquired a Spanish surname;

(6) “Pacific Islander” means any person whose origin is in any of the original peoples of Hawaii, Guam, Samoa, or other Pacific Islands.

(7) “White” means any person whose origin is Caucasoid.

(c) “Occupational Group” means a group of jobs or classes that includes the entry level, other working levels, and supervisory levels within the same general occupational field of work;

(d) “Relevant Labor Force” means the pool of individuals who possess the requisite qualifications for the job within the geographic area in which the agency can reasonably expect to recruit.

(e) “Statistically Significant” means the degree of underutilization is equal to or greater than the .05 level of significance using the one-tailed Z Test method of statistical analysis outlined in Appendix 4 of the Interim Guidelines for Conducting the Annual Analysis of the State Work Force, issued March 2002, by the State Personnel Board. This document is hereby incorporated by reference in its entirety. Using this methodology, a computed Z value of 1.65 or greater is sufficient to conclude that any underutilization is statistically significant.

(f) “Underutilization” means having fewer persons of a particular group in an occupation or at a level in a department than would reasonably be expected by their availability in the relevant labor force.

(g) “Work Force” means incumbents in full-time and other-than-full-time positions in the state civil service employed by the appointing authority.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 11092.5, 18523, 19702.1, 19790, 19791 and 19792, Government Code; Title VII of the Civil Rights Act of 1964, 42 USC, Sections 2000e-2 et seq.; “Revisions to the Standards for the Classification of Federal Data on Race and Ethnicity,” Federal Register, October 30, 1997; Connerly v. State Personnel Bd. (2001) 92 Cal. App. 4th 16; and Hazelwood School District v. United States (1977), 433 U.S. 299, 308, fn. 14.

HISTORY

1. New subchapter 1.7, article 1 (sections 547.80-547.81) and section filed 9-25-2000; operative 9-25-2000 (Register 2000, No. 39). This regulatory action was subject to limited review by OAL and is exempt from those provisions of the Administrative Procedure Act specified in section 18215(b) of the Government Code.

2. Amendment of subchapter heading, article heading, section and Note filed 5-7-2003 subject to partial compliance with the Administrative Procedure Act and limited review by the Office of Administrative Law pursuant to Government Code section 18215; effective on filing pursuant to Government Code section 11343.4 (Register 2003, No. 19).

§547.81. Establishment of Annual Equal Employment Opportunity Goals for Minorities and Women.

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 11092.5, 19702.1 and 19790, Government Code; Title VII of the Civil Rights Act of 1964, 42 USC, Sections 2000e-2 et seq.; Wygant v. Jackson Board of Education, 476 U.S. 267 (1986); Johnson v. Santa Clara Transportation Agency, 480 U.S. 616 (1987); and Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).

HISTORY

1. New section filed 9-25-2000; operative 9-25-2000 (Register 2000, No. 39). This regulatory action was subject to limited review by OAL and is exempt from those provisions of the Administrative Procedure Act specified in section 18215(b) of the Government Code.

2. Repealer filed 5-7-2003 subject to partial compliance with the Administrative Procedure Act and limited review by the Office of Administrative Law pursuant to Government Code section 18215; effective on filing pursuant to Government Code section 11343.4 (Register 2003, No. 19).

Subchapter 1.8. Upward Mobility

Article 1. Definitions

§547.82. Definitions.

Note • History

For purposes of this Subchapter:

(a) “Bridging Career Ladders” and “Career Ladders and Lattices” mean the succession of job classifications in which employees may normally gain experience in order to advance from positions in low-paying occupations into technical, professional, or administrative positions.

(b) “Bridging Classifications” mean job classifications established to provide experience for employees in low-paying occupations that meets the minimum qualifications for traditional entry technical, professional, and administrative classifications.

(c) “Career Development Plan” means an employee's written plan for advancement, which identifies a career goal and the specific self-development actions, including, but not limited to, work experiences, college courses, and training classes, needed to achieve the goal.

(d) “Entry Technical, Professional, and Administrative Positions” mean those positions in technical, professional, and administrative classifications for which hiring is typically open to the public and into which employees in low-paying occupations may advance.

(e) “Good Faith Effort” means that the department can demonstrate by its actions that it is fully complying with all upward mobility statutes and regulations.

(f) “Low-Paying Occupations” mean the following groups of classifications identified in the California Civil Service Pay Scales (Pay Scales), 50th Edition, as published by the California Department of Personnel Administration: Horticulture; Office and Allied Services; Custodian and Domestic Services; Mechanical and Construction Trades; and bridging and career development classifications in other occupational areas.

(g) “Technical, Professional, and Administrative Classifications” mean classifications in the following occupational categories identified in the Pay Scales: Agriculture and Conservation; Education and Library; Engineering and Allied Services; Fiscal, Management and Staff Services; Legal; Medicine and Allied Services; State Emergency Disaster Program; Protective Services and Public Safety; and Social Security and Rehabilitation Services.

(h) “Upward Mobility” means the development and advancement of employees from positions in low-paying occupations to entry technical, professional, and administrative positions.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19400-19403, 19405 and 19406, Government Code.

HISTORY

1. New subchapter 1.8 (articles 1-2, sections 547.82-547.87) article 1 (section 547.82) and section filed 12-21-2000; operative 12-21-2000 pursuant to Government Code section 18214 (Register 2000, No. 51).

Article 2. Upward Mobility Program Plans, Goals, and Related Procedures

§547.83. Coordinator.

Note • History

Each department shall appoint an upward mobility program coordinator to coordinate, monitor, and report on the department's upward mobility program efforts.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19400-19403, 19405 and 19406, Government Code.

HISTORY

1. New article 2 (sections 547.83-547.87) and section filed 12-21-2000; operative 12-21-2000 pursuant to Government Code section 18214 (Register 2000, No. 51).

§547.84. Plan Elements.

Note • History

Each department shall develop and maintain a written upward mobility plan as specified in the State Personnel Board's Guidelines for Administering Departmental Upward Mobility Employment Programs (Guidelines), revised July 25, 2000. This document is hereby incorporated by reference in its entirety. The plan shall include:

(a) A policy statement regarding the department's commitment to providing equal upward mobility opportunity for its employees in low-paying occupations.

(b) A description of the components of its program consistent with Government Code Section 19401, how employees may access the program, and where information about the program may be obtained.

(c) The roles and responsibilities of the employee, the employee's supervisor, the upward mobility program coordinator, the personnel office, the training office, and the equal employment opportunity office regarding the upward mobility program.

(d) Criteria for selecting employees in low-paying occupations to participate in the upward mobility efforts described in Government Code Section 19401.

(e) The number of employees in classifications in low-paying occupations used by the department; career ladders, bridging classes, and entry technical, professional, and administrative classes targeted for upward mobility; and planned upward mobility examinations.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19400-19403, 19405 and 19406, Government Code.

HISTORY

1. New section filed 12-21-2000; operative 12-21-2000 pursuant to Government Code section 18214 (Register 2000, No. 51).

§547.85. Employee Selection.

Note • History

(a) Departments shall conspicuously post and otherwise publicize upward mobility development and job opportunities for a reasonable time period, but not less than five working days, to provide an equal opportunity for interested employees in low-paying occupations to apply.

(b) Departments shall select employees in low-paying occupations for participation in upward mobility activities using criteria that are as objective as possible and that can be applied in a consistent manner. Criteria shall include, but not be limited to, such factors as upward mobility objectives; staffing needs; available funds and other resources; employee status; employee performance in current position; employee motivation and potential for advancement; and the relevance of the training.

(c) No employee shall be guaranteed advancement under any departmental upward mobility program, but all interested employees in low-paying occupations shall be given equal consideration to participate in upward mobility efforts. Employees selected for upward mobility efforts shall prepare a career development plan and maintain a satisfactory level of performance on the job, in academic courses, and/or in training programs to continue in the program.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19400-19403, 19405 and 19406, Government Code.

HISTORY

1. New section filed 12-21-2000; operative 12-21-2000 pursuant to Government Code section 18214 (Register 2000, No. 51).

§547.86. Upward Mobility Goals.

Note • History

(a) In accordance with the Guidelines, each department shall annually establish upward mobility goals that reflect the number of expected appointments of employees in low-paying occupations to positions in entry technical, professional, and administrative classifications during the fiscal year. Goals shall be established by classification and expressed as a whole number. In establishing goals, consideration shall be given to the following:

(1) The history of upward mobility appointments over at least a three-year period.

(2) The anticipated number of appointment opportunities.

(3) The availability of qualified upward mobility candidates for appointment.

(b) Departments shall submit the following information to the Board for review and approval by July 1st of each year:

(1) Upward mobility goals for each appropriate entry technical, professional and administrative classification.

(2) An analysis of how successful the department was in meeting its goals for the previous year.

(3) A description of the department's actions that demonstrate a good faith effort to comply with the requirements of Government Code Section 19401.

(4) The number of employees participating in each of the department's upward mobility efforts specified in Government Code Section 19401.

(5) The amount and percentage of the department's annual training budget assigned for upward mobility development activities.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19400-19403, 19405 and 19406, Government Code.

HISTORY

1. New section filed 12-21-2000; operative 12-21-2000 pursuant to Government Code section 18214 (Register 2000, No. 51).

§547.87. Board Review and Response.

Note • History

In accordance with Government Code Section 19402, the board will annually review each department's upward mobility goals and the other information required under Section 547.86 and provide a written response either approving or requiring modification to the department's upward mobility program.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19400-19403, 19405 and 19406, Government Code.

HISTORY

1. New section filed 12-21-2000; operative 12-21-2000 pursuant to Government Code section 18214 (Register 2000, No. 51).

Subchapter 2. Career Executive Assignment Rules

PREFATORY NOTE

Articles 1-16, inclusive, are promulgated under the authority of Section 18701, Government Code, unless otherwise stated.

Article 1. General

§548. Scope.

Note • History

This chapter shall have special reference to the category of civil service appointment called “career executive assignments.” Except as may be included in these regulations by specific reference, Chapters 3 through 8 of Part 2 of the Civil Service Act and the regulations stemming from this authority do not apply to this category. Regulations adopted by the State Personnel Board under the provisions of the Government Code applicable to career executive assignments shall apply to such assignments.

NOTE

Authority cited: Section 19889, Government Code. Reference: Sections 18546, 18547, 19889, 19889.2 and 19889.3, Government Code.

HISTORY

1. New subchapter 2 (sections 548 through 548.145) filed 10-15-63; effective thirtieth day thereafter (Register 63, No. 18).

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§548.1. Purpose.

Note • History

It is the purpose of these regulations to establish a system of merit personnel administration which will further the development, selection, and effective use of career executives in the California state civil service. They are general in nature and are intended to facilitate the multi-departmental and service wide procedures which recognize and afford opportunity to the most competent. Responsibility rests upon appointing powers, competitors and the Personnel Board alike to be sure that all actions under these regulations conform to the intent and goals of this program.

NOTE

Authority cited: Section 19889, Government Code. Reference: Section 19889, Government Code.

HISTORY

1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

2. Change without regulatory effect amending section and adding Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

Article 2. Position Assignment

§548.5. Career Executive Assignment Category.

History

HISTORY

1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

2. Repealer filed 6-12-86; effective thirtieth day thereafter (Register 86, No. 24).

§548.6. Reporting New Positions or Duty Changes.

History

HISTORY

1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

2. Repealer filed 6-12-86; effective thirtieth day thereafter (Register 86, No. 24).

§548.7. Use of Code Symbol.

History

HISTORY

1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

2. Repealer filed 9-18-85; effective thirtieth day thereafter (Register 85, No. 40).

Article 3. Compensation [Repealed]

HISTORY

1. Repealer of article 3 (sections 548.20-548.25) filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).

Article 4. Employment Lists

§548.30. Career Executive Assignment Examinations.

Note • History

The appointing power may conduct competitive examinations subject to these regulations and the approval of the executive officer. The results of an examination may be used to make additional appointments to Career Executive Assignment positions that are substantially the same as the one for which the original examination was announced. However, the eligibility of persons for appointment to such positions shall be subject to either,

(a) The appointing power specifying in the announcement for the original examination the additional positions for which the competition shall be used to make appointments, the methods and standards of evaluation to be used in the examination, and the time for which the results of the original competition shall be used; or

(b) The appointing power subsequently announcing that applications will be accepted as a supplement to the original announcement and that all otherwise qualified persons who apply will be considered with those who applied under the original announcement.

Lists of persons who apply for announced examinations shall be maintained by the appointing power as long as the results of the competition are to be used. These lists shall be kept for the purpose of facilitating future competition by reducing the need for repetitive evaluation and for the purpose of providing a record of the results of competitive examinations. Such lists of persons who apply and are evaluated for consideration for appointment shall not confer eligibility for appointment to other positions in the Career Executive Assignment category which are not among those provided for in this section.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18546, 19889, 19889.2 and 19889.3, Government Code.

HISTORY

1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

2. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).

3. Amendment filed 9-18-85; effective thirtieth day thereafter (Register 85, No. 40).

4. Change without regulatory effect amending opening paragraph and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§548.32. Roster Merging. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18930, 18546, 19221 and 19222, Government Code.

HISTORY

1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

2. Repealer filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).

Article 5. Examinations

§548.40. Competitive Examinations.

Note • History

Examinations for appointment to Career Executive Assignment positions shall be competitive and of such a character as fairly to test and determine the qualifications of candidates actually to perform the duties of the position to be filled. Examinations may include, but need not be limited to, an assessment of the candidates' character, education, experience, knowledge, skills, and ability. Examinations may be assembled or unassembled, written or oral, or in the form of a demonstration of skill, or any combination of these.

Examinations may include a review of applications, use of supplemental applications, appraisals of performance and executive potential, management exercises, and/or structured interviews.

The appointing power shall promulgate the job-related evaluation criteria that will be used to assess the qualifications of each candidate for the position. The appointing power shall assess each candidate's qualifications for the position based upon the evaluation criteria, and shall compare and rank each candidate against all other candidates based upon this assessment. Successful candidates shall be divided into 6 ranks based upon their scores. The first rank shall consist of candidates who receive scores of 95 percent or higher. The second rank shall consist of candidates who receive scores of 90 to 94 percent. The third rank shall consist of candidates who receive scores of 85 to 89 percent. The fourth rank shall consist of candidates who receive scores of 80 to 84 percent. The fifth rank shall consist of candidates who receive scores of 75 to 79 percent. The sixth rank shall consist of candidates who receive scores of 70 to 74 percent. Unsuccessful candidates shall receive a score of 65. All examination scores shall be rounded to the nearest whole percent. Each candidate shall be notified in writing of his or her score.

The appointing power shall appoint a candidate who is well-qualified to perform the duties of the position, and who is within one of the top three ranks. If there are fewer than a total of 5 candidates in the top three ranks, then the appointing power may consider candidates in the next lower ranks in rank order until there are at least 5 candidates available for consideration. For each examination, the appointing power shall maintain an examination file for a period of three years that includes, but is not limited to, the specific job-related evaluation criteria and selection procedures that were used in the examination; documentation on how those criteria were applied to the candidates; documentation as to the competitiveness of the candidates' qualifications relative to each other; and the appointing power's rationale for selecting the successful candidate.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18546, 19889, 19889.2 and 19889.3, Government Code; and Alexander v. State Personnel Board (2000) 80 Cal.App.4th 526.

HISTORY

1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

2. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).

3. Change without regulatory effect amending Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

4. Amendment of section and Note filed 10-23-2000; operative 10-23-2000; amended and refiled 12-6-2000. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213(a) (Register 2000, No. 49).

§548.41. Examination Announcements.

Note • History

It is the policy of the State Personnel Board that examinations for appointment to Career Executive Assignment positions shall be publicized as widely as appears practicable. When it is in the best interest of the State and of economy and efficiency, examinations may be conducted with restricted publicity subject to the approval of the executive officer. The executive officer may authorize appointing powers to prepare and distribute examination announcements, to conduct examinations for Career Executive Assignment appointments, and to establish standards for the review and interpretation of such minimum qualifications as the board may establish for the Career Executive Assignment category. Such interpretive standards shall be expressed on the examination announcement as desirable knowledge, skills, abilities, or personal characteristics that are actually necessary to perform the duties of the position to be filled. Specific amounts, kinds and levels of education and experience shall not be required but may be indicated as desirable and as the most likely sources of the requisite knowledges, skills, abilities and personal characteristics. Examination announcements shall identify the position for which the competition is being conducted and the evaluation standards and methods to be applied. If the results of the examination may be used to make additional appointments, the announcement shall conform to the provisions of Article 4 of these regulations on employment lists. The appointing power shall provide information on the content and scope of the examination publicity and on the methods and results of the evaluation used on forms and by procedures prescribed by the executive officer. When examinations are announced there shall be reasonable assurance that potential competitors are provided opportunity to be informed of their general nature and scope.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18935, 18546, 19889, 19889.2 and 19889.3, Government Code.

HISTORY

1. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).

2. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§548.42. Refusal to Examine or Approve Appointments.

Note • History

The executive officer may refuse to examine or to approve appointments to the Career Executive Assignment category for any reason specified in Government Code Section 18935.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19889, 19889.2 and 19889.3, Government Code.

HISTORY

1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

2. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 76, No. 33).

3. Change without regulatory effect amending Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§548.43. Availability of Information on Examination Method.

Note • History

The method or methods by which the appointing power conducted the competitive examination for appointment shall be available for the information of competitors upon request.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19889, 19889.2 and 19889.3, Government Code.

HISTORY

1. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).

2. Change without regulatory effect amending Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§548.44. Security Measures.

Note • History

The same security precautions shall be observed in preparing and conducting examinations for Career Executive Assignment positions as are required in the preparation and conduct of other examination processes. Competitors likewise shall be bound by the same prohibitions and penalties applying to competitors in other examinations.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19889, 19889.2 and 19889.3, Government Code.

HISTORY

1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

2. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).

3. Change without regulatory effect amending Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§548.45. Inspection of Examination Papers and Executive Assessment and Potential Ratings. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19220 and 19221, Government Code.

HISTORY

1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

2. Repealer filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).

§548.46. Disqualification of Persons Related to Competitor.

Note • History

Interviewers and evaluators shall be disqualified from Career Executive Assignment examinations in the manner provided by Section 197.5 for examinations for the general civil service.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18930 and 19889.2, Government Code.

HISTORY

1. Amendment filed 9-18-85; effective thirtieth day thereafter (Register 85, No. 40).

2. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§548.47. Fitness for Managerial Posts.

Note • History

Examinations for the Career Executive Assignment appointments shall give due regard to the general fitness of the competitors to serve in managerial posts as evidenced by demonstrated achievement and self development.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19889, 19889.2 and 19889.3, Government Code.

HISTORY

1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

2. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).

3. Change without regulatory effect amending Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§548.48. Ratings of Performance and Potential.

Note • History

In any examination for Career Executive Assignment appointment the executive officer or the appointing power may make such inquiry into the backgrounds of the competitors and obtain such ratings of past performance and potential as will be helpful in determining their fitness to serve in a career executive assignment.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19889, 19889.2 and 19889.3, Government Code.

HISTORY

1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

2. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).

3. Change without regulatory effect amending Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

4. Editorial correction of printing error in History 2. (Register 92, No. 39).

§548.49. Appeal From Examination or Departmental Appointment.

Note • History

Within 30 days after the report of appointment to a Career Executive Assignment position is submitted to the executive officer, and employee who is otherwise eligible for appointment to the C.E.A. category may appeal to the State Personnel Board upon the grounds of irregularity, fraud or discrimination in the conduct of the examination.

If, upon review of the record of the examination, the board grants the appeal by finding fraud or discrimination, it may cancel the examination and appointment and require the appointing power to repeat the competition for the position with specific instructions that will avoid such fraud or discrimination in subsequent competition; it may order whatever corrective action it finds best provides an appropriate remedy.

If an appellant alleges irregularity in the conduct of the examination, the board may cancel the appointment and/or order a new examination only if the board finds the irregularity materially affected the appointment made as a result of the examination.

Appeals based on a challenge of the qualifications of the person appointment made as a result of an examination shall be heard only upon the grounds that such person is not well qualified and/or was not carefully selected.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19889, 19889.2 and 19889.3, Government Code.

HISTORY

1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

2. Amendment filed 5-14-75; effective thirtieth day thereafter (Register 75, No. 20).

3. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).

4. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§548.50. Expenses.

Note • History

Expenses for nonsalaried assistants in the preparation and conduct of examinations may be provided as for the general civil service.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18546, Government Code.

HISTORY

1. Reinstatement of Section 548.50 which was inadvertently repealed instead of Section 548.5 on 8-28-85 (Register 85, No. 35) filed 6-12-86; effective thirtieth day thereafter (Register 86, No. 24).

§548.52. Written Examinations.

Note • History

The scoring, determination of ratings, inspection of papers or answer sheets, and appeals of the conduct of written examinations shall be administered in the same manner as provided for the general civil service as provided in Sections 176, 177, 178, 179, 180, 185, 186, 187, 188, 189, 190.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19680 and 19889.2, Government Code.

HISTORY

1. New section filed 9-18-85; effective thirtieth day thereafter (Register 85, No. 40).

2. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

Article 6. Promotion

§548.60. Promotional Examination Eligibility. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18546, Government Code.

HISTORY

1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

2. Reinstatement of Section 548.60 which was inadvertently repealed instead of Section 548.6 on 8-28-85 (Register 85, No. 35) filed 6-12-86; effective thirtieth day thereafter (Register 86, No. 24).

3. Repealer filed 11-20-87; operative 12-20-87 (Register 87, No. 48).

§548.61. Rights of Disadvantaged Employee.

Note • History

An employee who feels disadvantaged by any action taken by any superior or fellow employee in discouraging any manner hindering or preventing the employee from taking any examination or who alleges discrimination in State employment on the basis of age, sex, race, religious creed, color, national origin, ancestry, disability, marital status, or sexual orientation may appeal to the board in writing. Any such appeal or communication in connection therewith is confidential and shall not be disclosed without the consent of the employee taking such appeal. Immediately after receiving such appeal the board shall investigate and shall take such action as it deems necessary.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 18952, Government Code.

HISTORY

1. Amendment filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).

§548.62. Resignation of Eligible. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19220, 19221 and 19222, Government Code.

HISTORY

1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

2. Repealer filed 8-14-79; effective thirtieth day thereafter (Register 79, no. 33).

Article 7. Appointments

§548.70. Eligibility for Appointments.

Note • History

(a) Except as provided in this chapter, eligibility for appointment to a Career Executive Assignment position shall be established as the result of competitive examination of persons with permanent status; or who previously had permanent status in the state civil service; or persons who have been employed by the Legislature as defined in Government Code section 18990; or have held nonelected exempt positions in the executive branch of government as defined in Government Code sections 18992 and 19889.3; or persons retired from the United States military, honorably discharged from active military duty with a service-connected disability, or honorably discharged from active duty as defined in Government Code section 18991; who are well qualified to perform high administrative and policy-influencing functions. The scope and nature of such examinations may be determined by the appointing power subject to these regulations and the approval of the executive officer.

(b) This section will remain in effect until January 1, 2013, unless statutes are enacted before January 1, 2013, extending the sunset date of January 1, 2013, or making permanent Government Code sections 18546, 18990, 18992, and 19889.3.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18546, 18990, 18991, 18992, 19889, 19889.2 and 19889.3, Government Code.

HISTORY

1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

2. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).

3. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

4. Redesignation and amendment of existing section as subsection (a), new subsection (b) and amendment of Note filed 9-1-2010; operative 10-1-2010. Amendment exempt from the Administrative Procedure Act and OAL review pursuant to Government Code section 18211. Submitted to OAL for filing with the Secretary of State and printing in the CCR pursuant to Government Code section 11343.8 (Register 2010, No. 36).

If Government Code sections 18546, 18990, 18992, and 19889.3

sunset on January 1, 2013, this section shall read:

§548.70. Eligibility for Appointments. [Provisionally effective January 1, 2013]

Note • History

(a) Except as provided in this chapter, eligibility for appointment to a Career Executive Assignment position shall be established as the result of competitive examination of persons with permanent status in the state civil service or persons retired from the United States military, honorably discharged from active military duty with a service-connected disability, or honorably discharged from active duty as defined in Government Code section 18991, who are well qualified to perform high administrative and policy-influencing functions. The scope and nature of such examinations may be determined by the appointing power subject to these regulations and the approval of the executive officer.

(b) This section shall become operative on January 1, 2013.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18546, 18990, 18991, 18992, 19889, 19889.2 and 19889.3, Government Code.

HISTORY

1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

2. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).

3. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

4. Provisional version of section contingent upon sunset of Government Code sections 18546, 18990, 18992 and 19889.3 filed 9-1-2010; operative 10-1-2010. Amendment exempt from the Administrative Procedure Act and OAL review pursuant to Government Code section 18211. Submitted to OAL for filing with the Secretary of State and printing in the CCR pursuant to Government Code section 11343.8 (Register 2010, No. 36).

§548.71. Request for Certification. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19220, 19221 and 19222, Government Code.

HISTORY

1. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).

§548.72. Appropriate Lists. [Repealed]

History

HISTORY

1. Repealer filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

§548.73. Categories of Qualification. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19220, 19221 and 19222, Government Code.

HISTORY

1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

2. Repealer filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).

§548.74. Certification of the Roster. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19220, 19221 and 19222, Government Code.

HISTORY

1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

2. Repealer filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).

§548.75. Duty to Respond to Notice. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19220, 19221 and 19222, Government Code.

HISTORY

1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

2. Repealer filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).

§548.76. Waiver of Certification. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19220, 19221 and 19222, Government Code.

HISTORY

1. Repealer filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).

§548.77. Report of Appointment.

Note • History

The appointing power shall report of each appointment to the executive officer within 30 days of the effective date of the appointment and on forms and by procedures established by the executive officer.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19889 and 19889.2, Government Code.

HISTORY

1. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).

2. Change without regulatory effect amending Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

Article 8. Reinstatement

§548.90. Reinstatement of Employee.

Note • History

On the request of an appointing power, the executive officer may approve the reinstatement to a career executive assignment of any permanent employee, or an employee who previously had permanent status and who since such permanent status has had no break in the continuity of state service due to a permanent separation, who meets the reinstatement criteria stated in Government Code Section 19140.

The board, by resolution at the request of an appointing power, may approve the establishment of limited career executive assignment positions at levels classified within the general civil service to provide for the reinstatement of persons who are terminated from other career executive assignments. Such reinstatements may be approved only when all of the following conditions are present:

(a) The appointing power has an identified need for the services of the employee at a position at least equal to the highest general civil service classification authorized for use by the appointing power, and the duties and responsibilities of the individual concerned meet the definition of career executive assignment as stated in Government Code Section 18547; and

(b) The employee does not have prior status or employment list eligibility for appointment at this level; and

(c) The reinstatement will not result in a layoff or any other infringements of employees already in this classification.

It is not the intent of this section, nor shall this section provide any implied or expressed precedent authority for the establishment of career executive assignment positions other than those which fully meet the criteria specified in this section.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19889 and 19889.3, Government Code.

HISTORY

1. Amendment filed 11-1-72; effective thirtieth day thereafter (Register 72, No. 45).

2. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

3. Amendment filed 4-14-77; effective thirtieth day thereafter (Register 77, No. 16).

4. Change without regulatory effect amending subsection (c) and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§548.91. Reinstatement of Former Employee. [Repealed]

History

HISTORY

1. Amendment filed 11-1-72; effective thirtieth day thereafter (Register 72, No. 45).

§548.92. Breaks in Service. [Repealed]

History

HISTORY

1. Amendment filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).

Article 9. Transfer

§548.95. Transfer of Employee.

Note • History

With the approval of the executive officer, an appointing power may transfer an employee from one career executive assignment position to another at substantially the same or lower level of salary. Such transfer or demotions may, with the written approval of all parties, be made between appointing powers. Transfers between positions in different Career Executive Assignment levels and assignments shall be governed by the standards contained in Sections 430, 431, 432, 433 and 435 for transfer between general civil service classifications.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18546, 18547 and 19050.4, Government Code.

HISTORY

1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

2. Amendment filed 9-18-85;; effective thirtieth day thereafter (Register 85, No. 40).

3. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§548.96. Transfer of Employee From General Civil Service to a Career Executive Assignment. [Repealed]

Note • History

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18546, 18547 19889, 19889.2 and 19889.3, Government Code.

HISTORY

1. New section filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

3. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

4. Invalidated by Professional Engineers in California Government v. State Personnel Board (2001) 90 Cal.App.4th 678, 109 Cal.Rptr.2d 375 and repealer filed 6-20-2002 per section 100(a)(3), title 1 of the California Code of Regulations (Register 2002, No. 25).

Article 10. Performance Appraisal [Repealed]

HISTORY

1. Repealer of article 10 (section 548.100) filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).

Article 11. Absences [Repealed]

HISTORY

1. Repealer of article 11 (section 548.110) filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).

Article 12. Military and Defense Service

§548.115. Right to be Considered.

Note • History

Permanent civil service employees who are on military leave shall have the same rights to be considered for Career Executive Assignment appointments as if they were not on such leave.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19889 and 19889.2, Government Code.

HISTORY

1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

2. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).

3. Change without regulatory effect amending Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

Article 13. Service--General

§548.120. Responsibilities and Privileges. [Repealed]

History

HISTORY

1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

2. Repealer filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).

§548.121. Unauthorized Employment.

Any person acting in good faith in accepting an appointment or employment contrary to this chapter shall be paid by the appointing power the compensation promised by or on behalf of the appointing power or, in case no compensation is so promised, the actual value of any service rendered and the expense incurred in good faith under such attempted appointment or employment, and has a cause of action against the appointing power therefor.

§548.122. Medical Examination.

An appointing power may require an employee serving in a career executive assignment to undergo a medical examination for the same purposes and in the same manner as is provided for the general civil service.

§548.123. Good Faith.

Note • History

Good faith provisions as contained in Section 8 that apply to appointments in the general civil service shall apply in the same manner to appointments to positions in the Career Executive Assignment category.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19257 and 19257.5, Government Code.

HISTORY

1. New section filed 12-21-73; effective thirtieth day thereafter (Register 85, No. 40).

2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§548.124. Correction of Appointments.

Note • History

When the executive officer determines that a Career Executive Assignment appointment is unlawful, the executive officer shall take corrective and remedial action in the same manner as provided for the general civil service as provided in Sections 266 and 266.1. An employee holding such a Career Executive Assignment appointment shall have the right to receive notice, to respond, and to appeal such corrective action pursuant to Sections 266.2 and 266.3.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19257 and 19257.5, Government Code.

HISTORY

1. New section filed 9-18-85; effective thirtieth day thereafter (Register 85, No. 40).

2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

Article 14. Interjurisdictional Exchange

§548.130. Interjurisdictional Exchange.

Note • History

Participation of career executives in interjurisdictional employee exchange assignments shall be subject to the provisions of Section 427.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 18546, 18547, 19050.3 and 19050.8, Government Code.

HISTORY

1. Amendment filed 9-18-85; effective thirtieth day thereafter (Register 85, No. 40).

2. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

Article 15. Termination of Assignment

§548.135. Notice of Termination. [Repealed]

History

HISTORY

1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

2. Repealer filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).

§548.136. Appeal from Termination.

Note • History

Within 30 days after receipt of notice of termination of a career executive assignment, the affected employee may appeal to the State Personnel Board upon the grounds that the termination was effected for reasons of age, sex, sexual preference as prohibited by Governor's Executive Order B-54-79 (4/4/79), marital status, race, color, national origin, ancestry, disability as defined in Government Code Section 19231(a)(1), religion, or religious opinions and affiliations, political affiliation, or political opinions. After hearing the appeal, the board may affirm the action of the appointing power, or restore the affected employee to the career executive assignment.

NOTE

Authority: Sections 18701 and 19889.2, Government Code. Reference: Sections 19231, 19700, 19701, 19702, 19702.1, 19702.2, 19703, and 19889.2, Government Code; Gay Law Students Association v. Pacific Telephone and Telegraph Company (1979) 24 Cal.3d 458, 156 Cal.Rptr. 14, 595 P.2d 592.

HISTORY

1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15)

2. Amendment of section filed 8-19-91; operative 9-18-91 (Register 91, No. 50).

§548.137. Termination Upon Request of Employee. [Repealed]

History

HISTORY

1. Repealer filed 8-28-85; effective thirtieth day thereafter (Register 77, No. 15).

§548.138. Reduction in Force. [Repealed]

Note • History

NOTE

Authority cited: Section 19221 and 19530-19541, Government Code.

HISTORY

1. New section filed 10-8-70; effective thirtieth day thereafter (Register 70, No. 41).

2. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

3. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

4. Repealer filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).

§548.139. Seniority Credits. [Repealed]

Note • History

NOTE

Authority cited: Section 19533, Government Code.

HISTORY

1. New section filed 10-8-70; effective thirtieth day thereafter (Register 70, No. 41).

2. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).

3. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

4. Repealer filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).

Article 16. Separations from State Service

§548.145. Separation of Employee.

History

A person serving in a career executive assignment may be separated from state service through resignation, automatic resignation, dismissal, retirement, or for medical reasons under the provisions of Government Code Section 19253.5 in the same manner as is provided for other civil service employees. The career executive assignment of a person so separated shall be deemed to have been terminated, and the separation to have been from a position in the class in the general civil service in which the employee had permanent status.

HISTORY

1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).

Article 17. Reinstatement Following Termination

§548.150. Definition.

Note • History

“Former position,” for the purposes of this article, means the last position an employee held as a probationer or permanent employee or a position that is at least at the same salary level and to which the appointing power could have transferred the employee.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19889.3, Government Code.

HISTORY

1. New article 17 (sections 548.150-548.155) filed 3-9-81; effective thirtieth day thereafter (Register 81, No. 11).

2. Change without regulatory effect amending Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§548.151. Reinstatement to Former Position Following Termination.

Note • History

An employee terminated from a Career Executive Assignment shall be reinstated to his or her former position unless the employee elects to be appointed to another position, offered by the appointing power, for which he or she is eligible.

NOTE

Authority cited: Section 18701 and 19889.3, Government Code. Reference: Section 19889.3, Government Code.

HISTORY

1. Amendment of section heading filed 9-29-82; effective thirtieth day thereafter (Register 82, No. 40).

2. Amendment filed 9-18-85; effective thirtieth day thereafter (Register 85, No. 40).

§548.152. Permissive Reinstatement.

Note • History

An employee terminated from a Career Executive Assignment on or after January 1, 1981, after completing at least five years of state service may on or after the effective date of this rule be reinstated to a vacant position at the discretion of any appointing power within four years of such termination as follows:

1. Such employees who have completed at least one year but less than three years of career executive service may be reinstated to a position in a class that is not more that two steps higher in salary than the class in which the employee last served as a probationer or permanent employee, provided that such class is at least two steps lower in salary that the career executive level from which the employee is being terminated.

2. Such employees who have completed three or more years of career executive service may be reinstated to a position in any class that is at least two steps lower in salary than the career executive level from which the employee is being terminated.

For employees who are separated from state service, reinstatement eligibility under this rule shall not extend beyond the employee's reinstatement eligibility under Government Code Section 19140.

NOTE

Authority cited: Sections 18701 and 19889.3, Government Code. Reference: Section 19889.3, Government Code.

HISTORY

1. Amendment filed 9-29-82; effective thirtieth day thereafter (Register 82, No. 40).

§548.153. Mandatory Reinstatement.

Note • History

(a) The reinstatement rights provided under this section apply only to employees who are terminated from a Career Executive Assignment on or after April 3, 1981, after completing at least ten years of state service, including at least three consecutive years of career executive service under a single appointing power as specified in part (b) of this section, and who request reinstatement pursuant to this section, in writing, within ten days of receiving notice of the termination of their Career Executive Assignment.

(b) The three consecutive years of career executive service specified under part (a) must

(1) have occurred entirely within six years of the effective date of the employee's termination from a career Executive Assignment, and

(2) must terminate on or after January 1, 1981.

For the purposes of meeting this service requirement, exempt service shall not affect otherwise qualifying career executive service.

(c) Reinstatements under this section shall be to the last appointing power under which the employee completed three consecutive years of career executive service, as specified above.

(d) An eligible employee may request reinstatement to any general civil service level that is:

(1) At least two steps lower in salary than the lowest Career Executive Assignment level a which the employee served during his/her qualifying period of career executive service under this section, provided that the requested level is at least two steps lower than the level from which the employee is being terminated; and

(2) Above the level of the employee's former position.

An employee may limit his/her reinstatement request under this section to positions that the employee could reasonably be expected to accept without a change in his/her place of residence.

(e) Upon receipt of such a request, the appointing power shall reinstate the employee to a position at the requested level and, if applicable, location that is:

(1) Vacant; and

(2) In the same occupational area(s) as the Career Executive Assignment(s) that the employee held under the appointing power, provided such employee possesses any license, certificate, or registration required for the class in which the employee is being reinstated and performance in the Career Executive Assignment(s) combined wit the employee's prior employment history would reasonably predict successful performance in the lower level position.

An employee's refusal to accept a position offered pursuant to these provisions shall constitute a waiver of the employee's rights under this section to be reinstated to or to receive reemployment list eligibility for other positions at the same level, but shall not otherwise impact the rights and eligibilities provided by this article.

(f) If the appointing power does not have a vacant position that can satisfy the employee's reinstatement requested under this section, the following actions shall occur:

(1) If the employee's reinstatement request is not limited to his/her current location, the employee's name shall be placed on the appointing power's departmental and local subdivisional reemployment list for any classes containing positions which, if vacant, would satisfy the employee's reinstatement request pursuant to this section. If the employee's reinstatement request is limited to his/her current location, the employee's name shall be placed on a subdivisional reemployment list covering that location for the classes indicated above. Departmental or subdivisional reemployment list eligibility granted under this section shall not result in the employee's name being placed on any general reemployment list. Subdivisional eligibilities may be changed with the concurrence of the employee and the appointing power.

(2) The reinstatement and reemployment provision outlined in parts (e) and (f)(1) of this section shall be applied in descending order to any lower general civil service levels under the appointing power that contain positions which meet the criteria outlined in parts (d) and (e)(2) of this section.

(g) If an employee cannot be placed in a vacant position pursuant to this section, the employee shall be reinstated to his or her former position.

NOTE

Authority cited: Section 18701 and 19889.3, Government Code. Reference: Section 19889.3, Government Code.

HISTORY

1. Amendment filed 9-29-82; effective thirtieth day thereafter (Register 82, No. 40).

2. Amendment of subsection (f)(1) filed 11-19-82; effective thirtieth day thereafter (Register 82, No. 47).

3. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§548.154. Sequence of Reinstatement.

Note • History

When two or more employees are simultaneously seeking reinstatement or reemployment to the same class pursuant to the rights provided under this article, the appointing power shall act in the following sequence:

(a) All employees exercising a mandatory return right to their former position shall be reinstated.

(b) Employees seeking mandatory reinstatement or reemployment pursuant to Section 548.153 to a position other than their former position shall be appointed in seniority order to any remaining positions, provided that persons on reemployment lists shall be appointed only as allowed by Government Code Section 19056.

(c) Employees seeking permissive reinstatement pursuant to Section 548.152 may be reinstated to any remaining vacant positions.

NOTE

Authority cited: Section 18701, Government Code. Reference: Section 19889.3, Government Code.

HISTORY

1. Change without regulatory effect of subsection (b) filed 12-21-88 (Register 89, No. 1).

2. Change without regulatory effect amending subsections (b) and (c) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

§548.155. Probationary Period.

Note • History

An employee who is reinstated pursuant to Sections 548.152 or 548.153 shall be subject to the probationary period requirements specified in Section 322.

NOTE

Authority cited: Section 19889.3, Government Code. Reference: Sections 19170, 19171 and 19889.3, Government Code.

HISTORY

1. Amendment filed 5-29-84; effective thirtieth day thereafter (Register 84, No. 22).

2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).

Subchapter 3. State Personnel Board--Conflict of Interest Code

§549. General Provisions.

Note • History

The Political Reform Act (Government Code Section 81000, et seq.) requires state and local government agencies to adopt and promulgate conflict of interest codes. The Fair Political Practices Commission has adopted a regulation (2 Cal. Code of Regs. Section 18730) which contains the terms of a standard conflict of interest code, which can be incorporated by reference in an agency's code. After public notice and hearing it may be amended by the Fair Political Practices Commission to conform to amendments in the Political Reform Act. Therefore, the terms of 2 California Code of Regulations Section 18730 and any amendments to it duly adopted by the Fair Political Practices Commission are hereby incorporated by reference. This regulation and the attached Appendix designating officials and employees and establishing disclosure categories, shall constitute the conflict of interest code of the STATE PERSONNEL BOARD.

All designated employees shall file their statements with the STATE PERSONNEL BOARD who will make the statements available for public inspection and reproduction. (Gov. Code Section 81008). Upon receipt of the statements of board members and the executive officer, the agency shall make and retain a copy and forward the original of these statements to the Fair Political Practices Commission.

NOTE

Authority cited: Sections 87300 and 87304, Government Code. Reference: Section 87300, et seq., Government Code.

HISTORY

1. New subchapter 3 (sections 549-549.7 and Supplements) filed 5-27-77; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-16-76 (Register 7, No. 22).

2. Repealer of subchapter 3 (sections 549-549.7 and Supplements) and new subchapter 3 (section 549 and Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).

3. Amendment filed 11-22-91; operative 12-23-91. Submitted to OAL for printing only (Register 92, No. 12).

4. Amendment of Appendix filed 4-6-94; operative 5-6-94. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 1-25-94 (Register 94, No. 14).

Appendix

Assigned

Designated Positions Disclosure Categories

Board Member 1, 2, 3, 4

Executive Officer 1, 2, 3, 4

Assistant Executive Officer 1, 2, 3, 4

All Division Chiefs 1, 2, 3, 4

Chief Counsel 1, 2, 3, 4

Staff Counsel 1, 2, 3, 4

All Administrative Law Judges 1, 2, 3, 4

Manager, Merit Appeals Office 1, 2, 3, 4

Consultant* 1, 2, 3, 4

Disclosure Categories

Category 1

Designated officials or employees assigned to this category must report:

(1) Investments and business positions in any business entity and income from any source of the type which, within the last two years, has contracted with the State Personnel Board to provide services, supplies, materials, machinery or equipment.

Category 2

Designated officials or employees assigned to this category must report:

(1) Investments and business positions in any business entity and income from any source of the type which, within the last two years, has contracted with the State Personnel Board to provide instructional or consultative services or facilities for training programs.

Category 3

Designated officials or employees assigned to this category must report:

(1) Investments and business positions in any business entity and income from any source of the type which, within the last two years, has contracted with any county, city, district or other political subdivisions of the State or with State agencies excepted from State civil service to provide technical personnel management services.

Category 4

Designated officials or employees assigned to this category must report:

(1) Investments and business positions in any business entity and income from any source which is an employment agency or a provider of temporary personnel.

*Consultants shall be included in the list of designated employees and shall disclose pursuant to the broadest disclosure category in the code subject to the following limitation:

The executive officer may determine in writing that a particular consultant, although a “designated position,” is hired to perform a range of duties that is limited in scope and thus is not required to fully comply with the disclosure requirements in this section. Such written determination shall include a description of the consultant's duties and, based upon that description, a statement of the extent of disclosure requirements. The executive officer's determination is a public record and shall be retained for public inspection in the same manner and location as this conflict of interest code.

Subchapter 4. Demonstration Project and Performance Based Budget Pilot Project Rules (Promulgated Under Authority of Government Code Sections 11808, 18701, and 19600)

Article 1. Demonstration Projects--Department of General Services

§549.5. Class; Department of General Services--Career Management Assignment and Career Supervisory Assignment.

Note • History

For the demonstration projects implemented by the Department of General Services pursuant to Section 11808 of the Government Code for Career Management Assignment and Career Supervisory Assignment “class” means a broadband class for which the same general title may be used to designate each position allocated to the class and which may include more than one speciality area within the same general field of work. In addition to the minimum qualifications for each broadband class, other job-related qualifications may be required for particular positions within the class. These other job-related qualifications shall be described in the key position statement established for each position within the class.

NOTE

Authority cited: Sections 18701 and 18702, Government Code. Reference: Sections 18701, 18702 and 19602, Government Code.

HISTORY

1. New subchapter 4, article 1 (sections 549.5-549.11) and section filed 1-30-97; operative 3-1-97 (Register 97, No. 5).

2. Amendment of article heading, section heading, section and Note filed 12-3-97; operative 12-3-97. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 97, No. 49).

§549.6. Examinations; Department of General Services--Career Management Assignment and Career Supervisory Assignment.

Note • History

The demonstration projects implemented by the Department of General Services pursuant to Section 19600 et seq., of the Government code shall affect the examination process to select candidates for Career Management Assignment and Career Supervisory Assignment positions. During these projects, this department shall conduct open or promotional examinations for positions classified as Career Management Assignment or Career Supervisory Assignment pursuant to the procedures in Subchapter 2, Article 4 (Section 548.30) and Article 5 (Section 548.40 through 548.52) for Career Executive Assignments, with the following exceptions:

(a) The examination announcements specified by Section 548.41 shall specify the general minimum qualifications for the position as prescribed in the class specification and thew other job-related qualifications described in the key position statement established for the particular position within the class.

(b) The appointing power shall be governed by Subchapter 1, Section 171.1 in determining whether an applicant has completed the minimum time required by the experience component in the minimum qualifications, if any.

(c) The appointing power shall send a notification indicating the results of the selection process to all applicants for the position. Any eligible employee may appeal to the State Personnel Board, pursuant to Section 548.49, within 30 days of the date of the notification.

NOTE

Authority cited: Sections 18701 and 18702, Government Code. Reference: Sections 18701, 18702 and 19602, Government Code.

HISTORY

1. New section filed 1-30-97; operative 3-1-97 (Register 97, No. 5).

2. Amendment of first pragraph and Note filed 12-3-97; operative 12-3-97. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 97, No. 49).

§549.7. General Reemployment Lists; Department of General Services--Career Management Assignment and Career Supervisory Assignment.

Note • History

(a) Within the classes in the Career Management Assignment and Career Supervisory Assignment categories there shall be maintained a general reemployment list for each class identified by functional subdivision, recognizing individual position skill-based requirements as indicated in the key position statement for each position consisting of the names of all persons who have occupied positions with probationary or permanent status in the class and who have been legally laid off or demoted in lieu of layoff.

(b) Within one year from the date of his or her resignation in good standing, or his or her voluntary demotion, the name of an employee who had probationary or permanent status may be placed on the general reemployment list as described in (a) above with the consent of the appointing power and the board. The general reemployment list may also contain the names of persons placed thereon by the board in accordance with other provisions of law or rule.

NOTE

Authority cited: Sections 18701 and 18702, Government Code. Reference: Sections 18701, 18702 and 19602, Government Code.

HISTORY

1. New section filed 1-30-97; operative 3-1-97 (Register 97, No. 5).

2. Amendment of Note filed 12-3-97; operative 12-3-97. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 97, No. 49).

§549.8. Departmental or Subdivisional Reemployment Lists; Department of General Services--Career Management Assignment and Career Supervisory Assignment.

Note • History

Within the classes in the Career Management Assignment and Career Supervisory Assignment categories there shall be maintained a separate departmental reemployment list for each class identified by functional subdivision, recognizing individual position skill-based requirements as indicated in the key position statement for each position consisting of the names of persons on the general reemployment list but employed in the Department of General Services at the time of separation. There shall also be maintained a separate subdivisional reemployment list within the Department of General Services which shall consist of the names of persons employed in a subdivision of the Department of General Services at the time of separation if subdivisions for the Department of General Services have been set up with the approval of the Department of Personnel Administration for layoff purposes.

NOTE

Authority cited: Sections 18701 and 18702, Government Code. Reference: Sections 18701, 18702 and 19602, Government Code.

HISTORY

1. New section filed 1-30-97; operative 3-1-97 (Register 97, No. 5).

2. Amendment of Note filed 12-3-97; operative 12-3-97. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 97, No. 49).

§549.9. Probation; Department of General Services--Career Management Assignment and Career Supervisory Assignment.

Note • History

(a) The Department of General Service may, with the consent of the employee, extend the length of the employee's probationary period in any class within either the Career Management Assignment or the Career Supervisory Assignment categories. No extension shall exceed twelve (12) months or 1680 hours beyond the original proscribed probationary period for the class.

(b) Requests to extend an employee's probationary period must be submitted in writing to the Personnel Office and approved by the Appointing Authority at least five working days prior to completion of the initial 12-month probationary period.

(c) A Job Improvement Plan (Plan) must be developed for any employee who is subject to an extension of their probationary period. The Plan must specify any formal training, practice sessions, on-the-job training, or other alternative methods for job improvement which will be used to bring the employee's performance to an acceptable level. The employee must participate in the development of the plan and agree to follow.

(d) Performance evaluations must be provided at four (4)-month intervals and the employee may be passed or rejected at any time during the twelve (12)-month extension.

(e) A rejection during the extended time period shall be considered the same as a rejection during the original probationary period and the employee shall retain all rights accorded by law or rule. Notice to the employee shall be in the manner proscribed by Government Code Section 19173.

(f) The employee will have the same rights to appeal a rejection during the extension of the probationary period as an employee who is rejected during the original probationary period.

NOTE

Authority cited: Sections 18701 and 18702, Government Code. Reference: Sections 18701, 18702 and 19602, Government Code.

HISTORY

1. New section filed 1-30-97; operative 3-1-97 (Register 97, No. 5).

2. Repealer and new section and amendment of Note filed 12-3-97; operative 12-3-97. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 97, No. 49).

§549.10. Appeal from Rejection During Probation; Department of General Services--Career Management Assignment and Career Supervisory Assignment.

Note • History

(a) It is the intent of the Board that the Department of General Services and the employees appointed to Career Management Assignment or Career Supervisory Assignment classes will collaborate on the performance assessment standards to be used to identify and communicate quality of performance.

(b) Employees that are rejected during probation from classes in the Career Management Assignment and Career Supervisory Assignment categories either during the original probationary period or an extension of that probationary period, will be permitted to appeal the rejection only on three grounds: (1) discrimination; (2) fraud; (3) patronage. Employees will file appeals with the Personnel Board. The Personnel Board will schedule the appeal for hearing only in cases where the rejected employee has made a prima facie case at the threshold stage of the process. Appeals which do not allege and offer proof of one or more of the three grounds for appeal noted above will be dismissed with prejudice.

(c) The decision of the board to modify the action of the appointing power pursuant to this rule shall be taken only if the board determines, after investigation or hearing, that the rejection was made as a result of discrimination, fraud or patronage. In any such proceeding, the rejected employee shall have the burden of proof. Subject to rebuttal by the employee, it shall be presumed that the action was free from discrimination, fraud and patronage and that the statement of reasons in the notice of rejection during probation is true.

NOTE

Authority cited: Sections 18701 and 18702, Government Code. Reference: Sections 18701, 18702 and 19602, Government Code.

HISTORY

1. New section filed 1-30-97; operative 3-1-97 (Register 97, No. 5).

2. Amendment of subsections (b) and (c) and Note filed 12-3-97; operative 12-3-97. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 97, No. 49).

§549.11. Tenure of Managerial and Supervisory Employees; Department of General Services--Career Management Assignment and Career Supervisory Assignment.

Note • History

The provisions of Government Code Sections 19590 through 19593 shall apply to employees appointed to classes in the Career Management Assignment category after November 1, 1995, and to employees appointed to classes in the Career Supervisory Assignment category after November 5, 1996, except that notwithstanding Section 19593, these rules shall also apply to demotions from Career Management Assignment or Career Supervisory Assignment positions, regardless of when the managerial or supervisory appointment was effective.

NOTE

Authority cited: Sections 18701 and 18702, Government Code. Reference: Sections 18701, 18702, 18703 and 19602, Government Code.

HISTORY

1. New section filed 1-30-97; operative 3-1-97 (Register 97, No. 5).

2. Amendment of section and Note filed 12-3-97; operative 12-3-97. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 97, No. 49).

§549.12. Selection and Examinations; Department of General Services.

History

The Department of General Services shall utilize the following certification process for all classes which would normally fall under the provisions of Government Code Sections 19057 and 19057.4 and are used within the department:

For positions in these classes, there shall be certified to the appointing power the names and addresses of all those eligibles whose scores, at time of certification, represent the three highest ranks on the employment list for the class, and who have indicated their willingness to accept appointment under the conditions of employment specified.

For purposes of ranking, scores of eligibles on employment lists for these classes shall be rounded to the nearest whole percent. A rank shall consist of one or more eligibles with the same whole percentage score.

If the names on the list from which certification is being made represent fewer than three ranks, then additional eligibles shall be certified from the various lists next lower in order of preference until names from three ranks appear. If there are fewer than three names available for certification, and the appointing authority does not choose to appoint from among these, the appointing authority may demand certification of three names. In that case, examinations shall be conducted until at least three names may be certified by the procedure described in this section; if the appointing authority is going to fill the position using the eligible list, it shall fill the position by appointment of one of the persons certified.

HISTORY

1. New section filed 6-5-97; operative 6-5-97 pursuant to Government Code section 11343.4(d). Submitted to OAL for printing only (Register 97, No. 29).

Article 2. Demonstration Project--Health and Welfare Agency Data Center

§549.30. Demonstration Project; Health and Welfare Agency Data Center Examinations and Appointments.

Note • History

If the Health and Welfare Agency Data Center appointing power wishes to appoint a competitor to a position for which an examination has been conducted within the Health and Welfare Agency Data Center demonstration project, the appointing power shall fill the vacancy by selection of a competitor who has filed a timely application for the examination pursuant to Section 174, who meets the minimum qualifications for the class, and who is judged to be among the best qualified available competitors as a result of evaluations made pursuant to Section 549.31. If the appointing power has at the same time or within one year of the final date specified for filing an application for the examination more than one vacancy in the same class and for which the same or substantially similar job-related knowledge, skills and abilities are required, the first and every succeeding vacancy shall be filled in a like manner by selection of a competitor who has filed a timely application for the examination pursuant to Section 174, who meets the minimum qualifications for the class and who is judged to be among the best qualified remaining competitors pursuant to Section 549.31 unless the appointing power chooses to conduct a new examination, in which case the appointing power shall appoint a competitor judged to be among the best qualified in the new examination and who also has filed a timely application for that examination and meets the minimum qualifications for the class. For the duration of the Health and Welfare Agency Data Center demonstration project and for a period of at least one year following its conclusion, the Health and Welfare Agency Data Center shall maintain records of each examination conducted within the demonstration project. The records shall be sufficient to permit an independent review of examinations conducted within the demonstration project to determine whether they have complied with the intent of this Section, Section 549.31 and Article VII, Section 1(b) of the California Constitution. For each examination, such records shall include, but not be limited to, (a) a list of competitors who filed an application for the examination together with a notation as to their date of filing, (b) justification whether each competitor met the minimum qualifications for the class, and (c) a summary of the evaluation pursuant to Section 549.31 of each competitor who is offered a position. The provisions of this regulation do not apply if an appointment is to be made from a reemployment list under Government Code Section 19056. The provisions of this regulation do not apply if an appointment is to be made from a general reemployment list pursuant to Government Code Section 19056.5, unless there are fewer than three persons on the general reemployment list willing to accept employment under the conditions of employment specified in which case the appointing power may appoint a competitor in accordance with the provisions of this Section.

NOTE

Authority cited: Section 19602, Government Code. Reference: Section 19602, Government Code.

HISTORY

1. New article 2 (sections 549.30-549.34) and renumbering and amendment of former section 216 to new section 549.30 filed 3-10-97; operative 3-10-97. Submitted to OAL for printing only (Register 97, No.11).

§549.31. Health and Welfare Agency Data Center Demonstration Project Competitive Evaluations.

Note • History

Evaluations of education, experience, job related knowledge, skills, abilities and behaviors, and personal qualifications shall be made on a competitive basis in that each competitor shall be evaluated thereon in relation to the minimum and desirable qualifications for the class and position in question and in relation to the comparable qualifications of other competitors. The term “personal qualifications” includes all such personality traits and personal, moral, and physical characteristics as are necessarily comprehended by the minimum and desirable qualifications established for the class and position. When evaluating competitor's education, experience, and job related knowledge, skills, abilities and behaviors, interviewers shall consider the quality, and pertinence of such education, experience, and job related knowledge, skills, abilities and behaviors, and the degree to which competitor's total education and work histories and job related knowledge, skills, abilities and behaviors represent suitable preparation for the work of the class and position.

NOTE

Authority cited: Section 19602, Government Code. Reference: Section 19602, Government Code.

HISTORY

1. Renumbering and amendment of former section 216.1 to new section 549.31 filed 3-10-97; operative 3-10-97. Submitted to OAL for printing only (Register 97, No.11).

§549.32. Health and Welfare Agency Data Center Demonstration Project Notices of Examination Results.

Note • History

As soon as an examination has been completed, each competitor shall be notified in writing of the results of this examination.

NOTE

Authority cited: Section 19602, Government Code. Reference: Section 19602, Government Code.

HISTORY

1. Renumbering of former section 216.2 to new section 549.32 filed 3-10-97; operative 3-10-97. Submitted to OAL for printing only (Register 97, No.11).

§549.33. Demonstration Project; Health and Welfare Agency Data Center; Definition of “Class”; Establishment of Minimum Qualifications.

Note • History

For the demonstration project at the Health and Welfare Agency Data Center, “class” means a consolidation of similar classes in the same occupational area into a broader and deeper grouping for which the same general title may be used to designate each position allocated to the class and which may include more than one speciality area within the general field of work. In addition to the general minimum qualifications for each “class”, other job related qualifications will be required for particular positions within the class. The other job-related qualifications shall be described in the Individual Position Descriptions established for each position within the class.

NOTE

Authority cited: Section 19602, Government Code. Reference: Section 19602, Government Code.

HISTORY

1. New section filed 3-10-97; operative 3-10-97. Submitted to OAL for printing only (Register 97, No.11).

§549.34. Demonstration Project; Health and Welfare Agency Data Center; Voluntary Transfer Between Classes.

Note • History

Voluntary transfer between the “classes” as defined in rule 549.33 and other classes will be permitted pursuant to State Personnel Board rules 430-435, except transfers form the Health and Welfare Agency Data Center class of Information Technology Specialist, Range E to the classes of Senior Programmer Analyst (Specialist and Supervisor) and Senior Information Systems Analyst (Specialist and Supervisor) will not be permitted under any circumstances.

NOTE

Authority cited: Section 19602, Government Code. Reference: Section 19602, Government Code.

HISTORY

1. New section filed 3-10-97; operative 3-10-97. Submitted to OAL for printing only (Register 97, No.11).

Article 3. Performance Based Pilot Projects--Department of Consumer Affairs

§549.40. Selection and Examinations; Department of Consumer Affairs.

Note • History

The Department of Consumer Affairs shall utilize the following certification process for all classes which would normally fall under the provisions of Government Code Sections 19057 and 19057.4 and are used within the department.

NOTE

Authority cited: Sections 18210, 18211, 18213 and 18701, Government Code. Reference: Sections 18211 and 18213, Government Code.

HISTORY

1. New article 3 (section 549.40) and section filed 3-19-97; operative 3-19-97. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 97, No. 18).

2. Amendment of section heading, section and Note filed 9-22-97; operative 9-22-97. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 97, No. 45).

Article 4. Demonstration Project--Multi-Departmental

§549.50. Demonstration Project: Examination for Managerial Classifications.

Note • History

Under State Personnel Board supervision, any department specifically approved by State Personnel Board action to be included in this demonstration project, shall conduct a demonstration project, pursuant to Sections 19600 and 19607 of the Government Code, affecting the examination process to select candidates for managerial positions. During this demonstration project, these departments shall conduct examinations for positions classified as managerial pursuant to the procedures in Article 4 (Section 548.30) and Article 5 (Section 548.40 through 548.52) for Career Executive Assignments, with the following exceptions:

(a) The examination announcements specified by Section 548.41 shall specify the minimum qualifications for the position as prescribed for the specific classification.

(b) The appointing powers shall be governed by Section 171.1 in determining whether an applicant has completed the minimum time required by the experience component in the minimum qualifications, if any.

(c) The appointing power shall send a notification to all employees eligible for the position indicating which candidate has been selected. Any eligible employee may appeal to the State Personnel Board, pursuant to Section 548.49, within 30 days of the date of the notification.

NOTE

Authority cited: Sections 18210, 18211, 18213 and 18701, Government Code. Reference: Sections 19600 and 19607, Government Code.

HISTORY

1. New article 4 (section 549.50) and renumbering of former section 215.00 to new section 549.50, including amendment of section and Note, filed 9-17-97; operative 9-17-97. Submitted to OAL for printing only pursuant to Government Code sections 18210, 18211 and 18213 (Register 97, No. 38).

Article 5. Demonstration Project--Managerial Selection and Classification Consolidation and Broadbanding--Servicewide by Departmental Option [Repealed]

HISTORY

1. New article 5 (sections 549.60-549.67) and section filed 12-9-98; operative 12-9-98. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 98, No. 50).

2. Repealer of article 5 (sections 549.60-549.67) and section filed 3-23-2000; operative 3-23-2000. Submitted to OAL for printing only pursuant to Government Code section 18213 (Register 2000, No. 15).

Article 6. Legislative Counsel Bureau -- Special Examination and Appointment Program

§549.70. Legislative Counsel Bureau: Examinations and Appointments.

Note • History

If the Legislative Counsel Bureau appointing power wishes to appoint a competitor to an information technology position for which an examination has been conducted, the appointing power shall fill the vacancy by selection of a competitor who has filed a timely application for the examination pursuant to Section 174, who meets the minimum qualifications for the class, and who is judged to be among the best qualified available competitors as a result of evaluations made pursuant to Section 549.71.

If the appointing power has at the same time or within one year of the final date specified for filing an application for the examination more than one vacancy in the same class and for which the same or substantially similar job-related knowledge, skills, and abilities are required, the first and every succeeding vacancy shall be filled in a like manner by selection of a competitor who has filed a timely application for the examination pursuant to Section 174, who meets the minimum qualifications for the class and who is judged to be among the best qualified remaining competitors pursuant to Section 549.71, unless the appointing power chooses to conduct a new examination, in which case the appointing power shall appoint a competitor judged to be among the best qualified in the new examination and who also has filed a timely application for that examination and who meets the minimum qualifications for the class.

The Legislative Counsel Bureau shall maintain records of each examination conducted. The records shall be sufficient to permit an independent review of examinations conducted to determine whether they have complied with the intent of this Section, Section 549.71, and Article VII, Section 1(b) of the California Constitution. For each examination, such records shall include, but not be limited to (a) a list of competitors who filed an application for the examination together with a notation as to their date of filing; (b) justification whether each competitor met the minimum qualifications for the class; and (c) a summary of the evaluation pursuant to Section 549.71 of each competitor who is offered a position.

The provisions of this regulation do not apply if an appointment is to be made from a reemployment list under Government Code Section 19056. The provisions of this regulation do not apply if an appointment is to be made from a general reemployment list pursuant to Government Code Section 19056.5, unless there are fewer than three persons on the general reemployment list willing to accept employment under the conditions of employment specified, in which case the appointing power may appoint a competitor in accordance with the provisions of the Section.

Examinations shall be conducted pursuant to the procedures in Article 4 (commencing with Section 548.30) and Article 5 (commencing with Section 548.40) as with Career Executive Assignments.

NOTE

Authority cited: Sections 10205.1, 18701 and 18702, Government Code. Reference: Sections 18701 and 18702, Government Code.

HISTORY

1. New article 6 (sections 549.70-549.74) and new section filed 1-6-98; operative 1-6-98. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 98, No. 2).

2. Amendment of section heading, section and Note filed 3-21-2005; operative 3-21-2005 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2005, No. 12).

§549.71. Legislative Counsel Bureau: Competitive Evaluations.

Note • History

Evaluations of education, experience, job-related knowledge, skills, abilities, behaviors, and personal qualifications shall be made on a competitive basis in that each competitor shall be evaluated thereon in relation to the minimum and desirable qualifications for the class and position in question and in relation to the comparable qualifications of other competitors. The term “personal qualifications” includes all such personality traits and personal, moral, and physical characteristics as are necessarily comprehended by the minimum and desirable qualifications established for the class and position.

When evaluating a competitor's education, experience, and job-related knowledge, skills, abilities, and behaviors, interviewers shall consider the quality and pertinence of such education, experience, and job-related knowledge, skills, abilities, and behaviors, and the degree to which the competitor's total education and work history and job-related knowledge, skills, abilities, and behaviors represent suitable preparation for the work of the class and position.

NOTE

Authority cited: Sections 10205.1, 18701 and 18702, Government Code. Reference: Sections 18701 and 18702, Government Code.

HISTORY

1. New section filed 1-6-98; operative 1-6-98. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 98, No. 2).

2. Amendment of section heading and Note filed 3-21-2005; operative 3-21-2005 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2005, No. 12).

§549.72. Legislative Counsel Bureau: Notice of Examination Results.

Note • History

As soon as an examination has been completed, each competitor shall be notified in writing of the results of the examination. Pursuant to Section 548.49, an appeal shall be filed within thirty (30) days from the date the candidate was notified of the examination results.

NOTE

Authority cited: Sections 10205.1, 18701 and 18702, Government Code. Reference: Sections 18701 and 18702, Government Code.

HISTORY

1. New section filed 1-6-98; operative 1-6-98. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 98, No. 2).

2. Amendment of section heading, section and Note filed 3-21-2005; operative 3-21-2005 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2005, No. 12).

§549.73. Legislative Counsel Bureau: Definition of “Class” and Establishment of Minimum Qualifications.

Note • History

For the Legislative Counsel Bureau, “class” means a consolidation of similar classes in the same occupational area into a broader and deeper grouping for which the same general title may be used to designate each position allocated to the class and which may include more than one specialty area within the general field of work.

In addition to the general minimum qualifications for each “class”, other job-related qualifications will be required for particular positions within the class. The other job-related qualifications shall be described in the individual Position Descriptions established for each position within the class.

NOTE

Authority cited: Sections 10205.1, 18701 and 18702, Government Code. Reference: Sections 18701 and 18702, Government Code.

HISTORY

1. New section filed 1-6-98; operative 1-6-98. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 98, No. 2).

2. Amendment of section heading, section and Note filed 3-21-2005; operative 3-21-2005 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2005, No. 12).

§549.74. Legislative Counsel Bureau: Voluntary Transfer Between Classes.

Note • History

Voluntary transfer between the “classes” as defined in Rule 549.73 and other classes will be permitted pursuant to State Personnel Board Rules 430-435, except that transfers from the Legislative Counsel Bureau class of Information Technology Specialist, Range E to the classes of Senior Programmer Analyst (Specialist and Supervisor) and Senior Information Systems Analyst (Specialist and Supervisor) will not be permitted under any circumstances.

NOTE

Authority cited: Sections 10205.1, 18701 and 18702, Government Code. Reference: Sections 18701 and 18702, Government Code.

HISTORY

1. New section filed 1-6-98; operative 1-6-98. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 98, No. 2).

2. Amendment of section heading and Note filed 3-21-2005; operative 3-21-2005 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2005, No. 12).

Article 7. Department of Motor Vehicles--Special Examination and Appointment Program

§549.80. Department of Motor Vehicles: Managerial and Supervisory Selection and Examination.

Note • History

Pursuant to Government Code section 19602.5, the Department of Motor Vehicles (DMV) may conduct examinations and make appointments to select candidates for specified managerial and supervisory classifications, as approved by the Executive Officer. Examinations for the above identified classifications shall be conducted pursuant to the procedures in Article 4 (Section 548.30) and Article 5 (Section 548.40 through 548.52) for Career Executive Assignments, with the following exceptions:

(a) The examination announcements specified by Section 548.41 shall specify the minimum qualifications for the position as prescribed for the specific classification.

(b) The appointing power shall be governed by Section 171.1 in determining whether an applicant has completed the minimum time required by the experience component in the minimum qualifications, if any.

(c) Any eligible employee or applicant may appeal to the State Personnel Board, pursuant to Section 548.49, within thirty (30) days of the date of the notification of examination results.

(d) Examinations may be either open or promotional.

NOTE

Authority cited: Sections 18701 and 19602.5, Government Code. Reference: Sections 18930, 19054.1, 19600, 19605 and 19607, Government Code.

HISTORY

1. New article 7 (section 549.80) and section filed 6-27-2001; operative 6-27-2001 pursuant to Government Code section 11343.4. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 2001, No. 26).

2. Amendment of article heading, section heading, section and Note filed 3-19-2007; operative 1-9-2007 pursuant to Government Code section 18221. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2007, No. 12).

3. Amendment of first paragraph filed 2-25-2008; operative 1-22-2008. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 2008, No. 9).

Article 8. California Department of Transportation

§549.90. California Department of Transportation Managerial Selection Program.

Note • History

Under State Personnel Board supervision, the California Department of Transportation (Department) shall conduct the examination process to select candidates for positions designated M01 and M09. The Department shall conduct examinations for the above identified classifications pursuant to the procedures in Article 4 (Section 548.30) and Article 5 (Section 548.40 through 548.52) for Career Executive Assignments, with the following exceptions:

(a) The examination announcements specified by Section 548.41 shall specify the minimum qualifications for the position as prescribed for the specific classification.

(c) Any eligible employee may appeal to the State Personnel Board, pursuant to Section 548.49, within thirty (30) days of the date of the notification of examination results.

(d) Examinations may be either open or promotional.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19600, 19605 and 19607, Government Code.

HISTORY

1. New article 8 (section 549.90) and section filed 9-17-2001; operative 9-17-2001. Submitted to OAL for printing only pursuant to Government Code section 19602(f) (Register 2001, No. 38).

2. Amendment of article heading, section heading and section filed 3-19-2008; operative 1-22-2008. Submitted to OAL for printing only pursuant to Government Code section 19602(f) (Register 2008, No. 12).

Article 9. Demonstration Project -- Prison Industry Authority

§549.95. Prison Industry Authority Managerial and Supervisory Selection Demonstration Project.

Note • History

Under State Personnel Board (SPB) supervision, the Prison Industry Authority (PIA) shall conduct a demonstration project, pursuant to Government Code Sections 19600, 19605, and 19607, affecting the examination process to select candidates for positions designated M12 and S12 within PIA. During this demonstration project, the department shall conduct examinations for the above-identified classifications pursuant to the procedures in Article 4 (Section 548.30) and Article 5 (Sections 548.40 through 548.52) for Career Executive Assignments for testing purposes only, with the following exceptions:

(a) The examination announcements specified by Section 548.41 shall specify the minimum qualifications for the position as prescribed in the specific classification.

(c) Any eligible employee may appeal to SPB, pursuant to Section 548.49, within thirty (30) days of the date of the notification of the examination results.

(d) Examinations may be either open or promotional.

NOTE

Authority cited: Section 18701, Government Code. Reference: Sections 19600, 19605 and 19607, Government Code.

HISTORY

1. New article 9 (section 549.95) and section filed 11-4-2002; operative 11-4-2002. Submitted to OAL for printing only pursuant to Government Code section 19602(f) (Register 2002, No. 45).

Chapter 2. Board of Administration of Public Employees' Retirement System

Subchapter 1. Employees' Retirement System Regulations

Article 1. General

§550. Definitions.

Note • History

For the purpose of the regulations contained in this subchapter, the term “board” means Board of Administration, Public Employees' Retirement System; “retirement allowance” means a service retirement allowance or disability retirement allowance payable under the Public Employees' Retirement Law to a retired person; “group insurance plan” means a policy of group life, accident, health, or disability insurance, or a contract of a nonprofit membership corporation for the purpose of defraying the cost of medical service (including service rendered by doctors of medicine, doctors of osteopathy, or doctors of chiropractic) or hospital care, or both.

NOTE

Authority cited: for Subchapter 1 (§§ 550 and 551): Sections 20120 and 20630, Government Code. Additional authority cited: Sections 20135, 20303, 22500, Government Code. Reference: Section 20133, Government Code.

HISTORY

1. New Subchapter 1 ( §§ 550 and 551) filed 12-15-59; effective 30th day thereafter (Register 59, No. 21).

2. Repealer of Subchapters 1 and 1.1, and new Subchapter 1 (Sections 550, 550.1, 560, 575, 580, 581) filed 6-29-60; effective thirtieth day thereafter (Register 60, No. 15). (For history of Subchapter 1.1, see Registers 56, No. 7, and 57, No. 18).

3. Amendment filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32).

§550.1. Definitions. [Repealed]

History

HISTORY

1. Repealer filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32).

§551. Location of Offices.

Note • History

The office of the board is located at 400 P Street, Sacramento, California. Correspondence should be addressed to the Executive Officer, Public Employees' Retirement System, P.O. Box 942702, Sacramento, California 94229-2702.

NOTE

Authority cited: Section 20120, Government Code. Reference: Section 20133, Government Code.

HISTORY

1. New section filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32).

2. Change without regulatory effect amending section filed 6-12-96 pursuant to section 100, title 1, California Code of Regulations (Register 96, No. 24).

§552. Board Meeting Notice.

Note • History

(a) The Board shall mail a Board Meeting Notice showing matters and other items of business scheduled to be conducted at an upcoming Board meeting to those interested parties who have requested such notice in writing. The Board Meeting Notice may be mailed via electronic mail or the U.S. Postal Service, and shall be mailed at least 10 days prior to the scheduled Board meeting to which it relates. The Board Meeting Notice shall also be available on the Internet at www.calpers.ca.gov.

(b) The Board Meeting Notice shall include:

(1) The name, address, and telephone number of any person who can provide further information prior to the meeting;

(2) The address of the Internet site where notices are made available; and

(3) A specific agenda for the meeting, containing a brief description of the matters and other items of business to be conducted or discussed in either open or closed session. A description of a matter or other item of business to be conducted or discussed in closed session shall include a citation to the specific statutory authority under which a closed session is being held.

NOTE

Authority cited: Sections 20120, 20121 and 20151, Government Code. Reference: Section 11125, Government Code.

HISTORY

1. New section filed 3-9-2011; operative 4-8-2011 (Register 2011, No. 10).

Article 2. Administration

§554. Election of Board Members.

Note • History

Board member elections shall be conducted by the Election Coordinator designated by the Executive Officer in accordance with procedures adopted by the Board.

All CalPERS staff directly involved in conducting Board elections shall be required to sign a statement that they have fully complied with the CalPERS Board election procedures and have faithfully performed their assigned duties in the election. These statements shall be on file with the CalPERS Executive Office and shall be completed each time an election is held. No CalPERS staff directly involved in conducting a CalPERS election shall use his/her official position to favor one candidate over another. Nothing in this section shall prohibit CalPERS staff who are eligible to vote in an election from exercising the same personal rights as other eligible voters.

NOTE

Authority cited: Section 20121, Government Code. Reference: Section 20096, Government Code.

HISTORY

1. New section filed 7-2-82; effective thirtieth day thereafter (Register 82, No. 27). For history of Article 2, see Register 64, No. 17.

2. Amendment filed 7-9-84; effective thirtieth day thereafter (Register 84, No. 28).

3. Amendment of Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).

4. Amendment of second paragraph filed 11-30-2000 as an emergency; operative 11-30-2000 (Register 2000, No. 48). A Certificate of Compliance must be transmitted to OAL by 3-30-2001 or emergency language will be repealed by operation of law on the following day.

5. Change without regulatory effect correcting 11-30-2000 emergency action filed 12-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 51).

6. Pursuant to the order of the Superior Court of California, Court of Sacramento, dated April 20, 2001, in California State Employees Association, Local 1000, SEIU, AFL-CIO, CLC v. Public Employees Retirement System, et al., No. 00CS01662, the emergency amendment filed 11-30-2000 has been invalidated and is unenforceable until adopted in full compliance with the Administrative Procedure Act. Reinstatement of section as it existed prior to 11-30-2000 emergency amendment (Register 2001, No. 22).

7. Amendment filed 8-2-2001; operative 9-1-2001 (Register 2001, No. 31).

§554.1. Agency Responsibilities in Active Member Elections.

Note • History

Each public agency and each State department shall appoint an Agency Election Officer at the request of the Board in elections for Board members. Agencies shall immediately notify the Board of any change in the appointment.

Agency Election Officers shall:

(a) Certify that the designated Election Officer understands and will comply with the election instructions and that actions taken will be compatible with ethical election practices.

(b) Ensure the timely distribution to eligible members or posting of election materials sent by the Election Coordinator, according to the Election Coordinator's instructions.

(d) Ensure no campaign material is distributed with the election material sent by the Election Coordinator.

(e) Promptly provide any information necessary to the election process at the request of the Election Coordinator.

(f) Certify, under penalty of perjury, that election materials were forwarded to PERS members in that agency, as instructed by the Election Coordinator.

NOTE

Authority cited: Section 20121, Government Code. Reference: Section 20096, Government Code.

HISTORY

1. New section filed 7-2-82; effective thirtieth day thereafter (Register 82, No. 27).

2. Amendment filed 7-9-84; effective thirtieth day thereafter (Register 84, No. 28).

3. New subsection (a), repealer of former subsection (b) and amendment of newly designated subsection (b), and amendment of subsections (d) and (f) filed 8-9-94; operative 9-8-94 (Register 94, No. 32).

4. Amendment of Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).

§554.2. Notice of Election.

Note • History

(a) Before each election for a Board member identified in Government Code 20090, subdivision (g) or a special election to fill a vacancy pursuant to Government Code section 20095, the Board shall adopt a Notice of Election. The complete text of the Notice of Election shall be adopted as an agenda item at a regularly noticed public meeting of the Board.

(b) The Notice of Election shall contain:

i. A statement of whether, at the time of the adoption of the Notice of Election, the incumbent intends to be a candidate for reelection, pursuant to Government Code section 20096.3;

ii. The election schedule, including without limitation, the date for submission of Nomination Petition forms, Nomination Acceptance/Ballot Designation forms, and the dates of the election pursuant to this section and section 554.3 of this article;

iii. Eligibility criteria for candidates and voters pursuant to Government Code section 20090, subdivision (g);

iv. Candidate nomination and election procedures as provided in section 554.3 of this article;

v. Information required by the Nomination Petition as provided in section 554.3, subdivisions (b) and (c), of this article;

vi. The minimum number of valid original signatures required for nomination as a candidate pursuant to section 554.3, subdivision (e) of this article; and

vii. Such other information as determined by the Board at the noticed public meeting.

(c) The election schedule shall provide the Board adequate time and flexibility to accommodate the nomination and candidate statement arbitration processes, various administrative procedures and voting periods, including the opportunity for a run-off election, if necessary, and to seat the newly elected Board members by statutory deadlines. In no event shall ballots be distributed to voters earlier than 60 days after the adoption of the original Notice of Election.

(d) Any amendment to the Notice of Election, including amendments to the election schedule, shall be set forth in an Amended Notice of Election, adopted at a noticed public meeting of the Board.

(e) The Election Coordinator shall publish the Notice of Election before each election, using methods designed to provide adequate notice to potential candidates and voters, including but not limited to:

a. Posting the Notice of Election on the CalPERS website.

b. Mailing the Notice of Election directly to eligible retired members.

c. Providing employers with sufficient copies of the Notice of Election to allow widespread notice to employees.

(f) Agency Election Officers shall provide notification to eligible active members by direct distribution of the Notice of Election to members or by posting the Notice of Election in employee work areas.

NOTE

Authority cited: Section 20121, Government Code. Reference: Sections 20090, 20095 and 20096, Government Code.

HISTORY

1. New section filed 7-2-82; effective thirtieth day thereafter (Register 82, No. 27).

2. Amendment of Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).

3. Amendment of section and Note filed 6-26-2008; operative 7-26-2008 (Register 2008, No. 26).

§554.3. Nomination of Candidates [Effective until 1-16-2002].

Note • History

Members shall qualify for nomination if they meet the eligibility criteria adopted in advance of each election and publicized by the Board in the Notice of Election. Nomination shall be by petition, addressed to the Board and signed by members eligible to vote in the election being conducted. The minimum number of petition signatures required shall be determined by the Board and specified in the Notice of Election.

Only those petitions received in the Sacramento office of the System by the date specified in the Notice of Election shall be accepted.

Each nominee shall certify that the nominee accepts the nomination, consents to serve if elected and agrees to abide by a drawing of lots by the Secretary of State in case of a tied vote. Nominees shall return this certification on the form provided by the System by the date specified in the Notice of Election to have their names placed on the ballot.

NOTE

Authority cited: Section 20121, Government Code. Reference: Section 20096, Government Code.

HISTORY

1. New section filed 7-2-82; effective thirtieth day thereafter (Register 82, No. 27).

2. Amendment of Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).

3. Amendment of first paragraph filed 11-30-2000 as an emergency; operative 11-30-2000 (Register 2000, No. 48). A Certificate of Compliance must be transmitted to OAL by 3-30-2001 or emergency language will be repealed by operation of law on the following day.

4. Pursuant to the order of the Superior Court of California, Court of Sacramento, dated April 20, 2001, in California State Employees Association, Local 1000, SEIU, AFL-CIO, CLC v. Public Employees Retirement System, et al., No. 00CS01662, the emergency amendment filed 11-30-2000 has been invalidated and is unenforceable until adopted in full compliance with the Administrative Procedure Act. Reinstatement of section as it existed prior to 11-30-2000 emergency amendment (Register 2001, No. 22).

5. Amendment of first paragraph adopted by CalPERS Board 3-21-2001; submitted to OAL and filed 8-2-2001; operative 1-16-2002 (Register 2001, No. 31). Text of version effective through January 15, 2002, retained for reference.

§554.3. Nomination of Candidates [Effective 1-16-2002].

Note • History

(a) A person qualifies for nomination if he or she meets the eligibility criteria set forth in Government Code section 20090, subdivision (g), for the Board member position that is the subject of the election. To qualify for candidacy, a nominee must complete the procedures for nomination set forth in the Notice of Election. An individual nominee may not be a candidate for more than one Board member position during any particular election.

(b) Nomination shall be by petition, on the Nomination Petition form(s) provided by the System, addressed to the Board and signed by the nominee. The Nomination Petition form shall include all information required by this section as provided in the Notice of Election or any Amended Notice of Election. The petition shall identify clearly the specific Board member position for which the nominee seeks election. The petition shall also set forth information required to validate the nominee's eligibility, which shall include, the nominee's full name, last four (4) digits of the nominee's Social Security number, and employer or employer at retirement. The nominee shall also provide contact information, such as address, telephone number, fax number, and email address.

(c) A member or retired member shall be eligible to sign a Nomination Petition if he or she meets the eligibility criteria set forth in Government Code section 20090, subdivision (g), for the Board member position that is the subject of the election. Members or retired members signing a Nomination Petition shall provide identifying information for the purpose of validating membership in the System, which shall include, the member's or retired member's full name, last four (4) digits of his or her Social Security number, and employer or employer at retirement.

(d) The Nomination Petition Form shall be provided by the System as follows, pages 1 and 2 are reproduced below; subsequent identically formatted pages will be provided by the System for signature lines numbered 8 - 300:

(e) The minimum number of petition signatures required for candidacy shall be determined by the Board at a noticed public meeting and specified in the Notice of Election. In setting the minimum number of petition signatures, the Board will consider the goals of ensuring candidates have a minimum level of support and providing members and retirees access to candidacy. In no event shall less than 250 valid original signatures be required. Only those petitions received in the Sacramento office of the System by the date and time specified in the Notice of Election shall be accepted.

(f) Each nominee shall certify, on the Nomination Acceptance/Ballot Designation form provided by the System, that he or she accepts the nomination, consents to serve if elected and agrees to abide by a drawing of lots by the Secretary of State in case of a tied vote. If a nominee chooses to submit a Ballot Designation, he or she shall include the proposed Ballot Designation on the Nomination Acceptance/Ballot Designation form. The nominee shall return the Nomination Acceptance/Ballot Designation form by the date and time specified in the Notice of Election to have his or her name placed on the ballot.

(g) The Nomination Acceptance/Ballot Designation Form shall be provided by the System as follows:

CalPERS-BRD-195 (FRONT) (1/08)

CalPERS-BRD-195 (BACK) (1/08)

(h) The amendments to this section adopted on March 21, 2001 shall become operative on January 16, 2002. The amendments to Section 554.3 filed July 2, 1982, shall remain in effect until that time.

NOTE

Authority cited: Section 20121, Government Code. Reference: Section 20096, Government Code.

HISTORY

1. New section filed 7-2-82; effective thirtieth day thereafter (Register 82, No. 27).

2. Amendment of Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).

5. Amendment of first paragraph adopted by CalPERS Board 3-21-2001; submitted to OAL and filed 8-2-2001; operative 9-1-2001 (Register 2001, No. 31).

6. Amendment filed 6-26-2008; operative 7-26-2008 (Register 2008, No. 26).

7. Change without regulatory effect amending subsection (d) and repealing and adopting new Form CalPERS-BRD-74B (10/11) filed 4-23-2012 pursuant to section 100, title 1, California Code of Regulations (Register 2012, No. 17).

§554.4. Candidate Statements [Effective until 1-16-2002].

Note • History

Each candidate for an elective Board member position may provide a statement including the candidate's name, the word “Incumbent” when the candidate is the incumbent in the position for which the election is being held, job classification, employer (or employer at retirement), years of CalPERS-covered service, and a brief factual, biographical description of no more than 150 words of the candidate's education and background, and a list of organizations to which the candidate belongs, and positions held in those organizations. Statements indicating the candidate's opinion or positions on issues of general concern to the System's membership may be included, so long as they are clearly stated as the candidate's opinion or view. The statement must be truthful, and shall not include other information. The statements must not include any remarks or questions that are inherently misleading, including rhetorical remarks and questions that are inherently misleading.

The statement shall be filed with the Election Coordinator at the time the candidate accepts nomination. Once filed, statements may not be changed or withdrawn except by the Election Coordinator. The Election Coordinator shall reject or edit any statement which contains obscene, vulgar, profane, scandalous, untrue, libelous or defamatory matter or which does not meet the statement limitations stated above. The Election Coordinator may request the candidate to verify the truthfulness of any factual statements. The candidate shall provide timely verification upon such request. The Election Coordinator shall remove from the ballot the name of any candidate who fails to respond to such a verification request. Nothing in this section shall be deemed to make candidate statements or the authors thereof free or exempt from any civil or criminal action or penalty because of any false, slanderous or libelous statements offered for printing or distributed to voters. Information contained in the statement is the responsibility of the candidate and the Public Employees' Retirement System accepts no responsibility for the validity of the statement or the contents thereof.

NOTE

Authority cited: Section 20121, Government Code. Reference: Section 20096, Government Code.

HISTORY

1. New section filed 7-2-82; effective thirtieth day thereafter (Register 82, No. 27).

2. Amendment filed 8-9-94; operative 9-8-94 (Register 94, No. 32).

3. Change without regulatory effect amending first paragraph filed 6-12-96 pursuant to section 100, title 1, California Code of Regulations (Register 96, No. 24).

4. Amendment of first paragraph and Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).

5. Amendment filed 11-30-2000 as an emergency; operative 11-30-2000 (Register 2000, No. 48). A Certificate of Compliance must be transmitted to OAL by 3-30-2001 or emergency language will be repealed by operation of law on the following day.

6. Change without regulatory effect correcting subsections (a) and (b) of 11-30-2000 emergency action filed 12-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 51).

7. Pursuant to the order of the Superior Court of California, Court of Sacramento, dated April 20, 2001, in California State Employees Association, Local 1000, SEIU, AFL-CIO, CLC v. Public Employees Retirement System, et al., No. 00CS01662, the emergency amendment filed 11-30-2000 has been invalidated and is unenforceable until adopted in full compliance with the Administrative Procedure Act. Reinstatement of section as it existed prior to 11-30-2000 emergency amendment (Register 2001, No. 22).

8. Amendments adopted by CalPERS Board 3-21-2001; submitted to OAL and filed 8-2-2001; operative 1-16-2002 (Register 2001, No. 31). Text of version effective through January 15, 2002, retained for reference.

§554.4. Candidate Statements [Effective 1-16-2002].

Note • History

(a) Each candidate for an elective Board member position may provide a candidate statement including the candidate's name, the word “Incumbent” when the candidate is the incumbent in the position for which the election is being held, job classification, employer (or employer at retirement), years of CalPERS-covered service, and a general statement of no more than 300 words. The statement must be truthful, and shall contain no obscene, vulgar, profane, libelous or defamatory matter. The statement shall not include any remarks or questions that are inherently misleading, including rhetorical remarks and questions that are inherently misleading.

(b) The statement shall be filed with the Election Coordinator at the time the candidate accepts nomination. Once filed, statements may not be changed or withdrawn except as provided herein.

(c) Within 7 calendar days following the end of the nomination period, the Election Coordinator shall distribute all candidate statements to each candidate in the respective contest. Each candidate shall have 10 calendar days (or such longer period as the Election Coordinator may provide to all candidates) after the distribution of the candidate statements by the Election Coordinator to submit to the Election Coordinator an addendum to the candidate's statement of no more than 300 words. No addenda may change the initial candidate statement, but addenda, if any, shall be in addition to the initial candidate statement. The Election Coordinator shall, within 7 calendar days after the date in which all addenda are due, provide all candidates with all candidate statements including addenda if any.

(d) No statement may be changed or withdrawn, except that:

(1) a candidate who withdraws from the election may withdraw his/her statement at any time prior to printing, or,

(2) a candidate statement may be modified in accordance with a determination of an arbitration conducted in accordance with subdivision (e) below.

(e) Any controversy or claim arising out of or relating to a proposed candidate's statement's compliance with the provisions of this section shall be determined by a third-party arbitrator conducting arbitration in accordance with the laws of the State of California and as provided below, and the Labor Arbitration rules of the American Arbitration Association (AAA) in effect on November 15, 2000, to the extent the AAA rules are not in conflict with this subdivision.

(1) A written request for arbitration related to any candidate's statement must be filed with CalPERS Election Coordinator by a candidate not later than 5 working days after the Election Coordinator's mailing of candidate statements pursuant to subdivision (c) above. Upon the Election Coordinator's receipt of a request for arbitration, the Board or its delegate shall designate an independent, neutral third-party arbitrator to administer the arbitration. No board member who is a candidate for election that is the subject of the arbitration may participate in the selection of the arbitrator except as specified in subdivisions (2-6) below.

(2) A request for arbitration shall set forth the nature of the controversy or claim, a brief statement of the basis of the controversy or claim, and the remedy sought.

(3) Upon receipt of a request for arbitration under this section, the Election Coordinator shall mail a copy of the request to all candidates for the same seat and to the third-party arbitrator. Within seven days of mailing the request for arbitration by the Election Coordinator, any candidate for the seat that is the subject of the arbitration may request to participate in the arbitration by filing a written request with the Election Coordinator, which the Coordinator shall promptly forward to the third party arbitrator.

(4) The third-party arbitrator shall promptly submit simultaneously to each party requesting to participate an identical list of names of three persons chosen from its panel of arbitrators. Each party shall have seven days from the date the list is submitted in which to file an objection with the third-party arbitrator to any name, number the remaining names to indicate order of preference, and return the list to the third-party arbitrator. From among the persons for whom no objection has been filed, and in accordance with the designated order of preference, the third-party arbitrator shall invite an arbitrator to serve. If every proposed arbitrator receives an objection, or if the arbitrator selected declines or is unable to act, or if for any other reason the appointment cannot be made from the submitted lists, the third-party arbitrator shall make the appointment from among other members of the arbitrator's panel without the submission of any additional list.

(5) Any arbitration shall be held in the City of Sacramento. Any candidate for the same office may participate in the arbitration by filing notice with CalPERS. The determination of the arbitrator shall be rendered within 30 days of selection of an arbitrator and shall be final and binding on CalPERS and candidates for office.

(6) Each candidate participating in the arbitration shall bear its own expenses in connection with the preparation and presentation of his or her case at the arbitration proceedings. The fees and expenses of the arbitrator and all other expenses of the arbitration shall be borne equally by each candidate participating in the arbitration.

(f) The Election Coordinator shall distribute all deadlines and instructions related to candidate statements in writing to all candidates.

(g) Nothing in this section shall be deemed to make candidate statements or the authors thereof free or exempt from any civil or criminal action or penalty because of any statements offered for printing or distributed to voters. Information contained in the statement is the responsibility of the candidate and the California Public Employees' Retirement System accepts no responsibility for the validity of the statement or the contents thereof.

The amendments to this section adopted on March 21, 2001 shall become operative on January 16, 2002. The amendments to Section 554.4 filed August 24, 1998 shall remain in effect until that time.

NOTE

Authority cited: Section 20121, Government Code. Reference: Section 20096, Government Code.

HISTORY

1. New section filed 7-2-82; effective thirtieth day thereafter (Register 82, No. 27).

2. Amendment filed 8-9-94; operative 9-8-94 (Register 94, No. 32).

3. Change without regulatory effect amending first paragraph filed 6-12-96 pursuant to section 100, title 1, California Code of Regulations (Register 96, No. 24).

4. Amendment of first paragraph and Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).

8. Amendments adopted by CalPERS Board 3-21-2001; submitted to OAL and filed 8-2-2001; operative 1-16-2002 (Register 2001, No. 31).

9. Amendment of subsections (a) and (c) filed 4-26-2012; operative 5-26-2012 (Register 2012, No. 17).

§554.5. Ballot Distribution.

Note • History

(a) Except as provided in paragraph (b), below, the Election Coordinator shall cause ballots, candidate statements and postage paid return envelopes to be mailed by the System directly to the residence of each retired member, and to each eligible active member for whom the Board has a residence address and is permitted by law to use such address to mail these election materials. For those eligible active members for whom the Board does not have access to a legally permissible residence address, the Election Coordinator shall forward their ballots, candidate statements, and postage paid return envelopes to the Agency Election Officer with instructions to ensure that these materials are immediately provided to the identified member(s). For purposes of this section, “eligible active member” means a member of the System who is employed, on the date specified in the Notice of Election's criteria for voter eligibility, by an employer participating in the System.

Marked ballots shall be returned to the location designated by PERS in the postage paid return envelope provided by the System, or another comparable envelope, and the reverse side shall be signed by the voter certifying under penalty of perjury that the voter is eligible to vote in the election; otherwise the ballot shall not be valid.

(b) Where only one candidate has been nominated in accordance with section 554.3, the Election Coordinator shall, upon verification of the signatures presented in the nominating petition and upon the candidate's certification of his/her nomination acceptance, cancel the remaining election procedures and designate the single candidate to be certified as elected by the Secretary of State. Upon the Secretary of State's certification, the Board member elected through this process shall take his/her office on the day provided for by statute.

NOTE

Authority cited: Sections 20096 and 20121, Government Code. Reference: Section 20096, Government Code.

HISTORY

1. New section filed 7-2-82; effective thirtieth day thereafter (Register 82, No. 27).

2. Amendment filed 7-9-84; effective thirtieth day thereafter (Register 84, No. 28).

3. Amendment filed 8-9-94; operative 9-8-94 (Register 94, No. 32).

4. Amendment of newly designated subsection (a) and new subsection (b) filed 7-17-95 as an emergency; operative 7-17-95 (Register 95, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-95 or emergency language will be repealed by operation of law on the following day.

5. Certificate of Compliance as to 7-17-95 order including amendment of Note transmitted to OAL 10-27-95 and filed 12-1-95 (Register 95, No. 48).

6. Amendment of Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).

§554.6. Ballot Counting and Runoff Election [Effective 1-16-2002].

Note • History

(a) Signed ballot envelopes shall not be opened until the deadline for final receipt of valid ballots. On the date specified in the Notice of Election at the location designated by CalPERS, the sealed signed envelopes containing the valid ballots shall be opened and canvassed publicly by an independent, neutral agent appointed by CalPERS for the purpose. The candidate having a majority of votes, or the winning lot as drawn by the Secretary of State in case of a tie vote, or the single candidate as provided in section 554.5(b), shall be certified by the Secretary of State as having been elected.

(b) Where the Board members elected under Government Code section 20090, subdivision (g)(1) are elected in the same election, the two positions shall be separately designated Position A and Position B. The position held by Charles Valdes on November 15, 2000 shall thereafter be designated Position A. The position held by William B. Rosenberg on November 15, 2000 shall thereafter be designated Position B.

(c) The candidate receiving the majority vote for each position shall be certified by the Secretary of State as having been elected. In the event that no candidate for any position receives a majority of votes (i.e., 50% of votes cast plus one vote), a runoff election will be conducted involving the two candidates who received the highest number of votes.

(d) The amendments to this section adopted on March 21, 2001 shall become operative on January 16, 2002. The amendments to this section filed December 1, 1995 shall remain in effect until that time.

NOTE

Authority cited: Section 20121, Government Code. Reference: Sections 20090 and 20096, Government Code.

HISTORY

1. New section filed 7-2-82; effective thirtieth day thereafter (Register 82, No. 27).

2. Amendment filed 7-9-84; effective thirtieth day thereafter (Register 84, No. 28).

3. Amendment filed 8-9-94; operative 9-8-94 (Register 94, No. 32).

4. Amendment filed 7-17-95 as an emergency; operative 7-17-95 (Register 95, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-95 or emergency language will be repealed by operation of law on the following day.

5. Certificate of Compliance as to 7-17-95 order transmitted to OAL 10-27-95 and filed 12-1-95 (Register 95, No. 48).

6. Amendment of Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).

7. Amendment of section heading and section filed 11-30-2000 as an emergency; operative 11-30-2000 (Register 2000, No. 48). A Certificate of Compliance must be transmitted to OAL by 3-30-2001 or emergency language will be repealed by operation of law on the following day.

8. Change without regulatory effect correcting subsection (a) of 11-30-2000 emergency action filed 12-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 51).

9. Pursuant to the order of the Superior Court of California, Court of Sacramento, dated April 20, 2001, in California State Employees Association, Local 1000, SEIU, AFL-CIO, CLC v. Public Employees Retirement System, et al., No. 00CS01662, the emergency amendment filed 11-30-2000 has been invalidated and is unenforceable until adopted in full compliance with the Administrative Procedure Act. Reinstatement of section as it existed prior to 11-30-2000 emergency amendment (Register 2001, No. 22).

10. Amendment of section heading, section and Note adopted by CalPERS Board 3-21-2001; submitted to OAL and filed 8-2-2001; operative 1-16-2002 (Register 2001, No. 31).

11. Change without regulatory effect designating last two paragraphs as subsections (c) and (d) filed 7-11-2002 pursuant to section 100, title 1, California Code of Regulations (Register 2002, No. 28).

§554.6. Ballot Counting and Runoff Election [Effective 1-16-2002].

Note • History

The candidate receiving the majority vote for each position shall be certified by the Secretary of State as having been elected. In the event that no candidate for any position receives a majority of votes (i.e., 50% of votes cast plus one vote), a runoff election will be conducted involving the two candidates who received the highest number of votes.

The amendments to this section adopted on March 21, 2001 shall become operative on January 16, 2002. The amendments to this section filed December 1, 1995 shall remain in effect until that time.

NOTE

Authority cited: Section 20121, Government Code. Reference: Sections 20090 and 20096, Government Code.

HISTORY

1. New section filed 7-2-82; effective thirtieth day thereafter (Register 82, No. 27).

2. Amendment filed 7-9-84; effective thirtieth day thereafter (Register 84, No. 28).

3. Amendment filed 8-9-94; operative 9-8-94 (Register 94, No. 32).

5. Certificate of Compliance as to 7-17-95 order transmitted to OAL 10-27-95 and filed 12-1-95 (Register 95, No. 48).

6. Amendment of Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).

8. Change without regulatory effect correcting subsection (a) of 11-30-2000 emergency action filed 12-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 51).

10. Amendment of section heading, section and Note adopted by CalPERS Board 3-21-2001; submitted to OAL and filed 8-2-2001; operative 1-16-2002 (Register 2001, No. 31).

§554.7. Notice of Election Results [Effective until 1-16-2002].

Note • History

(a) Within three working days after the public ballot canvassing, or after verification of the nominating signatures and certification of nomination acceptance as provided in section 554.5(b), the Election Coordinator shall post the unofficial election results and transmit these unofficial results to each candidate, utilizing express mail services.

(b) Following certification by the Secretary of State, the Election Coordinator shall notify the Executive Officer, candidates, Board members, staff and other interested parties of the official, certified results. Notification to the newly elected Board member shall include an Oath of Office form. This form is to be signed by the member in the presence of a notary public and returned to the System. The Election Coordinator shall file the Oath with the Secretary of State.

NOTE

Authority cited: Section 20121, Government Code. Reference: Section 20096, Government Code.

HISTORY

1. New section filed 7-2-82; effective thirtieth day thereafter (Register 82, No. 27).

2. Amendment filed 7-9-84; effective thirtieth day thereafter (Register 84, No. 28).

3. New subsection (a), designation and amendment of subsection (b), and designation of subsection (c) filed 8-9-94; operative 9-8-94 (Register 94, No. 32).

4. Amendment of subsection (a) filed 7-17-95 as an emergency; operative 7-17-95 (Register 95, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-95 or emergency language will be repealed by operation of law on the following day.

5. Certificate of Compliance as to 7-17-95 order including amendment of subsection (b) transmitted to OAL 10-27-95 and filed 12-1-95 (Register 95, No. 48).

6. Amendment of Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).

7. Amendment of subsection (a) filed 11-30-2000 as an emergency; operative 11-30-2000 (Register 2000, No. 48). A Certificate of Compliance must be transmitted to OAL by 3-30-2001 or emergency language will be repealed by operation of law on the following day.

8. Change without regulatory effect correcting subsection (a) of 11-30-2000 emergency action filed 12-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 51).

10. Amendment of subsection (a) adopted by CalPERS Board 3-21-2001; submitted to OAL and filed 8-2-2001; operative 1-16-2002 (Register 2001, No. 31). Text of version effective through January 15, 2002, retained for reference.

§554.7. Notice of Election Results [Effective 1-16-2002].

Note • History

(a) Within three working days after the public ballot canvassing of the election and runoff election, if any, or after verification of the nominating signatures and certification of nomination acceptance as provided in section 554.5(b), the Election Coordinator shall post the unofficial election results and transmit these unofficial results to each candidate, utilizing express mail services.

The amendments to this section adopted on March 21, 2001 shall become operative on January 16, 2002. The amendments to this section filed July 17, 1995 shall remain in effect until that time.

NOTE

Authority cited: Section 20121, Government Code. Reference: Section 20096, Government Code.

HISTORY

1. New section filed 7-2-82; effective thirtieth day thereafter (Register 82, No. 27).

2. Amendment filed 7-9-84; effective thirtieth day thereafter (Register 84, No. 28).

3. New subsection (a), designation and amendment of subsection (b), and designation of subsection (c) filed 8-9-94; operative 9-8-94 (Register 94, No. 32).

5. Certificate of Compliance as to 7-17-95 order including amendment of subsection (b) transmitted to OAL 10-27-95 and filed 12-1-95 (Register 95, No. 48).

6. Amendment of Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).

8. Change without regulatory effect correcting subsection (a) of 11-30-2000 emergency action filed 12-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 51).

10. Amendment of subsection (a) adopted by CalPERS Board 3-21-2001; submitted to OAL and filed 8-2-2001; operative 1-16-2002 (Register 2001, No. 31).

§554.8. Recount of an Election [Effective until 1-16-2002].

Note • History

(a) A request for a recount shall not delay the seating of an elected Board member. Such elected Board member shall take office, in accordance with the published election schedule, subject to the potential termination of such Board membership as a result of the recount.

(b) A candidate in the affected Board member election may file a written request with the Election Coordinator at the Sacramento Office of PERS for recount within ten working days following the mailing of the unofficial election results; otherwise, there shall be no opportunity for requesting a recount and the certified election results stand as the official results.

(c) A written request for a recount shall specify the election to be recounted, shall be signed by the candidate requesting the recount, and may specify any other relevant material to be examined.

(d) The Election Coordinator shall set a date for the recount upon receipt of the written request, and shall confirm this date upon receipt of the estimated cost to conduct the recount. The estimated cost of conducting a recount will include the system's administrative cost and the costs of the ballot counting contractor, if applicable. Legal tender of the amount of the estimated cost of conducting the recount shall be submitted by the candidate requesting the recount to the Election Coordinator within three working days following notification of the estimated cost to conduct the recount; otherwise, the recount shall be termined.

(e) If the results of the recount do not change the ranking of the candidates (either the unofficial ranking or the certified ranking, depending upon whether the unofficial results have been certified by the Secretary of State as of the date of the recount), then the unofficial results shall, upon receipt of Secretary of State certification, stand as the official election results. In this case, if the actual cost of the recount is less than the estimated cost deposited by the requester, PERS shall refund the amount which exceeds the actual cost; if the actual cost of the recount is more than the estimated cost, PERS shall invoice the requester for the difference.

(f) If the results of the recount do change the ranking of the candidates (either the unofficial ranking or the certified ranking, depending upon whether the unofficial results have been certified by the Secretary of State as of the date of the recount), then the recount results shall be resubmitted to the Secretary of State for certification as the official election results. In this case, PERS shall refund the amount of the estimated cost deposited by the requester.

NOTE

Authority cited: Section 20121, Government Code. Reference: Section 20096, Government Code.

HISTORY

1. New section filed 8-9-94; operative 9-8-94 (Register 94, No. 32).

2. Change without regulatory effect amending subsection (f) filed 6-12-96 pursuant to section 100, title 1, California Code of Regulations (Register 96, No. 24).

3. Amendment of Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).

4. Amendment of subsections (b), (e) and (f) filed 11-30-2000 as an emergency; operative 11-30-2000 (Register 2000, No. 48). A Certificate of Compliance must be transmitted to OAL by 3-30-2001 or emergency language will be repealed by operation of law on the following day.

5. Change without regulatory effect correcting subsection (b) of 11-30-2000 emergency action filed 12-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 51).

7. Amendment of subsections (b), (e) and (f) adopted by CalPERS Board 3-21-2001; submitted to OAL and filed 8-2-2001; operative 1-16-2002 (Register 2001, No. 31). Text of version effective through January 15, 2002, retained for reference.

§554.8. Recount of an Election [Effective 1-16-2002].

Note • History

(b) A candidate in the affected Board member election may file a written request with the Election Coordinator at the Sacramento Office of CalPERS for recount within ten working days following the mailing of the unofficial election results of the runoff election, if any, otherwise, of the election; otherwise, there shall be no opportunity for requesting a recount and the certified election results stand as the official results.

(c) A written request for a recount shall specify the election to be recounted, shall be signed by the candidate requesting the recount, and may specify any other relevant material to be examined.

(e) If the results of the recount do not change the ranking of the candidates (either the unofficial ranking or the certified ranking, depending upon whether the unofficial results have been certified by the Secretary of State as of the date of the recount), then the unofficial results shall, upon receipt of Secretary of State certification, stand as the official election results. In this case, if the actual cost of the recount is less than the estimated cost deposited by the requester, CalPERS shall refund the amount which exceeds the actual cost; if the actual cost of the recount is more than the estimated cost, CalPERS shall invoice the requester for the difference.

(f) If the results of the recount do change the ranking of the candidates (either the unofficial ranking or the certified ranking, depending upon whether the unofficial results have been certified by the Secretary of State as of the date of the recount), then the recount results shall be resubmitted to the Secretary of State for certification as the official election results. In this case, CalPERS shall refund the amount of the estimated cost deposited by the requester.

The amendments to this section adopted on March 21, 2001 shall become operative on January 16, 2002. The amendments to this section filed August 24, 1998 shall remain in effect until that time.

NOTE

Authority cited: Section 20121, Government Code. Reference: Section 20096, Government Code.

HISTORY

1. New section filed 8-9-94; operative 9-8-94 (Register 94, No. 32).

2. Change without regulatory effect amending subsection (f) filed 6-12-96 pursuant to section 100, title 1, California Code of Regulations (Register 96, No. 24).

3. Amendment of Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).

5. Change without regulatory effect correcting subsection (b) of 11-30-2000 emergency action filed 12-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 51).

7. Amendment of subsections (b), (e) and (f) adopted by CalPERS Board 3-21-2001; submitted to OAL and filed 8-2-2001; operative 1-16-2002 (Register 2001, No. 31).

§554.9. Protest of an Election.

Note • History

(a) The filing of a protest shall not delay the seating of an elected Board member. Such elected Board member shall take office, in accordance with the published election schedule, subject to the potential termination of such Board membership as a result of the protest. Any newly elected member, as the result of a protest, shall hold office for a period equal to the remainder of the term of the vacated office.

(b) Any party who is an active or retired member of CalPERS, eligible to vote in the applicable Board member election, may protest a runoff election, if any, or an election, if no runoff election is conducted. A protest shall be filed with the Election Coordinator at the Sacramento Office of CalPERS within ten working days following the mailing of the certified election results. A protest shall be in writing, shall be identified using the word “protest”, shall specify the election, and shall state the grounds of the protest and suggested remedy.

(c) Upon receipt of a valid and timely protest, the Election Coordinator shall mail a copy of the request to all candidates for the same seat. The Board or its designee shall appoint an independent, neutral agent which shall designate a Protest Panel using the following process. The independent agent shall promptly submit simultaneously to each candidate for the same office that is subject of the protest an identical list of names of at least five persons chosen from its panel of arbitrators. Each candidate shall have seven days from the date the list is submitted in which to file an objection with the agent to any name, number the remaining names to indicate order of preference, and return the list to the agent. From among the persons for whom no objection has been filed, and in accordance with the designated order of preference, the agent shall invite members to serve on the Protest Panel. If every proposed panel member receives an objection, or if a panel member selected declines or is unable to act, or if any other reason the appointment cannot be made from the submitted list, the agent shall make the appointment from among other members of the agent's panel of arbitrators without the submission of any additional list. No Board member who is a candidate for election that is the subject of the protest may participate in the selection of the Protest Panel. The decision of the Protest Panel shall be final. The Protest Panel shall be comprised of no less than three people, all of whom are neither employed by CalPERS nor otherwise interested in the outcome of the election that is the subject of the protest. For purpose of the foregoing sentence only, membership in CalPERS does not, by itself, constitute an “interest in the outcome of the election.” The Protest Panel shall consider written and/or oral arguments submitted by the protestor and any other interested party, including the Board's staff. Any oral proceedings shall be held in the City of Sacramento. The determination of the Protest Panel shall be rendered within 30 days of selection of the Panel and shall be final and binding on CalPERS and candidates for office. Other procedures, including those for receiving and considering arguments and factual allegations, shall be determined by the Protest Panel in its sole discretion. A protest shall only be granted upon a finding that Board-adopted election procedures were not substantially followed and that, without this lack of substantial compliance, the election outcome would likely have been different.

NOTE

Authority cited: Section 20121, Government Code. Reference: Section 20121, Government Code; Duva, Calif. School Employees' Assoc. v. PERS., et al., 1993 Sacramento Superior Court Case No. 375842.

HISTORY

1. New section filed 8-9-94; operative 9-8-94 (Register 94, No. 32).

2. Amendment of Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).

3. Amendment filed 11-30-2000 as an emergency; operative 11-30-2000 (Register 2000, No. 48). A Certificate of Compliance must be transmitted to OAL by 3-30-2001 or emergency language will be repealed by operation of law on the following day.

4. Change without regulatory effect correcting subsections (b) and (c) of 11-30-2000 emergency action filed 12-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 51).

5. Pursuant to the order of the Superior Court of California, Court of Sacramento, dated April 20, 2001, in California State Employees Association, Local 1000, SEIU, AFL-CIO, CLC v. Public Employees Retirement System, et al., No. 00CS01662, the emergency amendment filed 11-30-2000 has been invalidated and is unenforceable until adopted in full compliance with the Administrative Procedure Act. Reinstatement of section as it existed prior to 11-30-2000 emergency amendment (Register 2001, No. 22).

6. Amendment filed 8-2-2001; operative 9-1-2001 (Register 2001, No. 31).

§554.10. Ballot Designations [Effective until 1-16-2002].

Note • History

Each candidate for an elective Board member position may choose a Ballot Designation at the time he or she certifies acceptance of nomination as a candidate. The Ballot Designation will be printed below the candidate's name, on the ballots that are mailed to each eligible voter. The Ballot Designation must be accurate and not misleading.

Each candidate must choose a single Ballot Designation, in conformity with the following guidelines:

(a) If the candidate is already a Board member at the time he or she certifies acceptance of nomination, then the candidate may use the single word “Incumbent” and this is the only time it may be used as a designation. The word “Incumbent” may not be used in conjunction with the candidate's title as a CalPERS Board member.

(b) If the candidate holds an elected office at any level of government, or is an elected or appointed judge for a court of record in California, at the time he or she certifies acceptance of nomination, he or she may use the title of that office. If the candidate is retired from that office, the title may still be used, if preceded by the word “Retired.” The candidate shall not make any other reference to a prior elected or appointed office, such as by the word “former” or “ex.”

(c) The candidate may designate the principal profession or occupation in which he or she is engaged, at the time he or she certifies acceptance of nomination. This designation may be general or specific, but it shall not exceed three words in length. If the candidate is retired from the principal profession or occupation, it may still be designated if preceded by the word “Retired.” Any geographic reference that is part of the designation shall count as one word, but the word “Retired” shall not count. The candidate shall not make any other reference to prior professional or occupational status, such as by the word “former” or “ex.”

(d) The candidate shall not use the Ballot Designation to state, or imply, an endorsement or alliance. This means the designation cannot name a political party or any racial, religious or ethnic group. The candidate shall not use the Ballot Designation to state, or imply, a particular level of skill or performance. This means the designation cannot be modified by adjectives such as outstanding, leading, expert, virtuous, or eminent.

The determination of whether or not a Ballot Designation conforms to these guidelines shall be made in the sole discretion of the Election Coordinator. If a Ballot Designation does not conform, in whole or in part, it shall be reformed by the Election Coordinator with prior notice to the candidate, before it is printed on the ballots.

The Election Coordinator will provide each candidate with written criteria for choosing a Ballot Designation in conformity with these guidelines, including examples of designations that were used in prior elections. The choice of Ballot Designation must be made by each candidate, and the Public Employees' Retirement System accepts no responsibility for the content or validity of a given Ballot Designation.

NOTE

Authority cited: Section 20121, Government Code. Reference: Section 20096, Government Code.

HISTORY

1. New section filed 8-24-98; operative 9-23-98 (Register 98, No. 35).

2. Amendment of subsections (a) and (d) filed 11-30-2000 as an emergency; operative 11-30-2000 (Register 2000, No. 48). A Certificate of Compliance must be transmitted to OAL by 3-30-2001 or emergency language will be repealed by operation of law on the following day.

3. Change without regulatory effect correcting subsection (a) of 11-30-2000 emergency action filed 12-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 51).

5. Amendment of subsections (a) and (d) adopted by CalPERS Board 3-21-2001; submitted to OAL and filed 8-2-2001; operative 1-16-2002 (Register 2001, No. 31). Text of version effective through January 15, 2002, retained for reference.

§554.10. Ballot Designations [Effective 1-16-2002].

Note • History

Each candidate must choose a single Ballot Designation, in conformity with the following guidelines:

(a) If the candidate already holds the Board member position to which he or she is seeking election, then the candidate may use the single word “Incumbent” and this is the only time it may be used as a designation. The word “Incumbent” may not be used in conjunction with the candidate's title as a CalPERS Board member.

The Election Coordinator will provide each candidate with written criteria for choosing a Ballot Designation in conformity with these guidelines, including examples of designations that were used in prior elections. The choice of Ballot Designation must be made by each candidate, and the California Public Employees' Retirement System accepts no responsibility for the content or validity of a given Ballot Designation.

The amendments to this section adopted on March 21, 2001 shall become operative on January 16, 2002. The addition of this section filed August 24, 1998 shall remain in effect until that time.

NOTE

Authority cited: Section 20121, Government Code. Reference: Section 20096, Government Code.

HISTORY

1. New section filed 8-24-98; operative 9-23-98 (Register 98, No. 35).

3. Change without regulatory effect correcting subsection (a) of 11-30-2000 emergency action filed 12-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 51).

5. Amendment of subsections (a) and (d) adopted by CalPERS Board 3-21-2001; submitted to OAL and filed 8-2-2001; operative 1-16-2002 (Register 2001, No. 31).

§555. Action of Executive Officer.

Note • History

The Executive Officer is hereby authorized to act: on any application for refund of contributions, crediting of service, correction of records, retirement for disability or service, and death benefits and allowances; and to fix and authorize the payment of any refund, allowance or benefit to which such applicant may be found to be entitled; to cause medical examination of retired persons; and to reinstate such persons from retirement upon his determination that disability does not exist. The Executive Officer may refer the question of an applicant's entitlement to any refund, allowance or benefit or of his reinstatement from retirement to a hearing officer for hearing.

The Executive Officer is hereby authorized and empowered to delegate to his subordinates authority to take any such action on his behalf.

NOTE

Authority cited for Article 2: Section 20120, Government Code. Reference: Sections 20107 and 20133, Government Code.

HISTORY

1. New Article 2 ( §§ 555 through 555.4) filed 8-10-64; effective thirtieth day thereafter (Register 64, No. 17).

2. Amendment filed 2-26-75; effective thirtieth day thereafter (Register 75, No. 9).

§555.1. Right of Appeal.

History

Any applicant dissatisfied with the action of the Executive Officer on his application, other than his referral of the matter for hearing, may appeal such action to the Board by filing a written notice of such appeal at the offices of the Board within thirty days of the date of the mailing to him by the Executive Officer, at his most recent address of record, of notice of the action and right of appeal. An appeal shall contain a statement of the facts and the law forming the basis for appeal. Upon a satisfactory showing of good cause, the Executive Officer may grant additional time not to exceed 30 days, within which to file such appeal.

HISTORY

1. Amendment filed 4-28-76; effective thirtieth day thereafter (Register 76, No. 18).

§555.2. Statement of Issues.

Any applicant filing an appeal shall be entitled to a hearing, and upon the filing of an appeal in accordance with these rules, or upon the Executive Officer's referral of any question for hearing, the Executive Officer shall execute a statement of issues. Such action of the Executive Officer shall not preclude the Board from recalling the proceedings for its review or hearing.

§555.3. Accusation.

Any member whose retirement for disability has been requested by his employer shall be entitled to a hearing. The Executive Officer, upon determination that a member shall be retired for disability on such application, shall file an accusation and serve a copy thereof on the member and his employer.

§555.4. Hearings.

All hearings shall be conducted in accordance with the provisions of Chapter 5, Part 1, Division 3, Title 2 of the Government Code. Each case shall be heard by the hearing officer alone. All proposed decisions of hearing officers shall be referred to the Board. The Executive Officer is hereby authorized and empowered to take, in the name and on behalf of the Board, any action which the Board is authorized or directed by law to take with respect to procedural and jurisdictional matters in connection with any case in which a statement of issues or accusation has been filed.

§556. Service Fees.

Note • History

Reasonable requests for information and service with respect to a claim for benefits shall be satisfied without charge, except that there shall be a standard charge for copywork. With respect to matters other than a claim for benefits, requests for information and service shall be satisfied only upon agreement to pay to the System a fee representing cost to the System for providing such information and service.

NOTE

Authority cited: Sections 20120-20124, Government Code. Reference: Sections 20120-20124, Government Code.

HISTORY

1. New section filed 12-6-77; effective thirtieth day thereafter (Register 77, No. 50).

§558. Incompatible Activities Statement.

Note • History

The following activities are deemed to be inconsistent, incompatible, in conflict with, or inimical to the duties of PERS officers or employees:

(1) Using the prestige or influence of the state or PERS for the officer's or employee's private gain or advantage or the private gain of another.

(2) Using state time, facilities, equipment (including but not limited to xerox machines, telephones, vehicles, postage meters, data processing or word processing equipment, or personal computers) or supplies for private gain or advantage.

(3) Using, or having access to, confidential information available by virtue of state employment (including but not limited to confidential data filed by a member or beneficiary with the board, and confidential contract, financial, investment or legal information) for private gain or advantage.

(4) Providing confidential information (including but not limited to confidential data filed by a member or beneficiary with the board, and confidential contract, financial, investment or legal information) to persons to whom issuance of this information has not been authorized.

(5) Receiving or accepting money or any other consideration (including but not limited to entertainment, lodging, travel expenses, services or other items) from anyone other than the state for the performance of his or her job duties as a state officer or employee.

(6) Performance of an act in other than his or her capacity as a state officer or employee knowing that the act may later be subject, directly or indirectly to the control, inspection, review, audit, or enforcement by the officer or employee.

(7) Receiving or accepting, directly or indirectly, any gift, including money, or any service, gratuity, favor, entertainment, hospitality, loan, or any other thing of value from anyone who is doing or is seeking to do business of any kind with the Public Employees' Retirement System or whose activities are regulated or controlled by PERS under circumstances from which it reasonably could be substantiated that the gift was intended to influence the officer or employee in his or her official duties or was intended as a reward for any official actions performed by the officer or employee.

(8) Subject to any other laws, rules, or regulations as pertains thereto, not devoting his or her full time, attention, and efforts to his or her state office or employment during his or her hours of duty as a state officer or employee.

The following activities are specifically deemed to be incompatible, inconsistent, in conflict with, or inimical to the duties of PERS officers and employees due to the nature of the responsibilities of the Public Employees' Retirement System:

(9) Accepting commercial transportation or lodging of any type, or accepting direct or indirect payment or reimbursement for lodging or transportation of any type from any person, business entity, or organization doing or seeking to do business of any kind with PERS, except where:

(A) the travel and/or accommodations or payment or reimbursement for such are provided in connection with training, or a meeting, seminar, or conference which the Executive Officer, or the Board President where the proposed attendee is the Executive Officer, has determined to be of educational value to the attendee; and

(B) the acceptance of the transportation, lodging, payment or reimbursement for such is not prohibited by any other section of this regulation or by any other provision of law.

PERS or the State of California shall pay for travel and lodging expenses of PERS officers and employees on PERS-related business whenever possible. Only if the system or the state is unable to pay the officer's or employee's travel or lodging expenses may a PERS officer or employee accept commercial transportation or lodging of any type, or reimbursement or direct or indirect payment for lodging or transportation of any type, from sources other than PERS or the State of California.

Prior to accepting commercial transportation or lodging or payment or reimbursement for lodging and/or transportation of any type from a source other than PERS or the State of California, the Assistant Executive Officers and employees shall obtain written approval from the Executive Officer, and the Executive Officer shall obtain prior written approval from the Board President.

(10) Claiming travel expenses from PERS for other than state business. No employee shall accept dual payment for travel expenses.

(11) Initiating contact with state administrators or legislative personnel for the purpose of presenting PERS' policy or position on legislation or amendments thereto or initiative or referendum petitions, unless such act is a part of the officer's or employee's official duties. This prohibition does not preclude officers or employees, as private citizens, from contacting legislative or administrative personnel.

(12) Publishing any writing or making any statement to the media which directly or indirectly refers to his or her connection with PERS unless such an act is part of the officer's or employee's official duties, or unless such writing or statement contains an appropriate disclaimer indicating that the views expressed are his or her own and do not necessarily reflect the views of PERS or the Board.

(13) PERS employees and officers shall report all gifts, gratuities and other considerations which are not prohibited by this regulation, except those which are from family members or which are clearly given in a personal or social setting. Such report shall be on PERS' gratuity reporting form, in the month the gift was received. Even gifts which have no monetary value or are of nominal value are to be reported.

(14) All gifts, gratuities and other consideration which are prohibited by the provisions of this regulation are to be returned to the sender whenever possible. The return of prohibited gifts and other consideration can be at PERS' expense, through the mail room, and can include any insurance needed.

(15) For purposes of this regulation, “outside employment” is defined as any services performed by a PERS employee or officer on his or her own time, during other than normal working hours, for which he or she receives any form of compensation.

Outside employment is deemed inconsistent, incompatible, in conflict with, or inimical to the officer's or employee's duty to PERS if it violates any of the provisions of this regulation, or any other law.

PERS officers and employees must obtain prior approval, in the manner described below, before engaging in the types of employment described in (A)-(C):

(A) Outside employment with any person, organization or business entity of any type that contracts with PERS to provide goods or services, or contracts with PERS for any other purpose.

(B) Being a partner in, or acting as an officer or board member of, or as a consultant or contractor to, or owning more than a five percent ownership interest in any business, institution, or any agency which he/she knows has financial dealings with PERS.

(C) Any employment, the nature of which is parallel to or closely allied with the services provided to PERS by the officer or employee, including but not limited to, attorneys performing outside legal work, investment officers providing outside investment services, or actuaries providing outside actuarial services.

A PERS officer or employee who wishes to engage in outside employment or an activity which meets the criteria set forth above in subsection (C), must first make a written request for and receive a written determination that such outside employment or activity is not inconsistent, incompatible, or in conflict with the officer's or employee's duty to PERS. An employee will obtain this determination from his or her Division Chief or function head. Division Chiefs or function heads, and Assistant Executive Officers, will obtain this determination from the PERS Executive Officer.

The PERS Executive Officer shall not engage in such outside employment which meets the criteria set forth above in subsection (C), unless he or she has obtained prior approval from the Board by way of formal Board action.

An officer or employee who is engaged in outside employment on the effective date of this regulation may continue such employment while the request for determination is being processed.

This regulation does not attempt to specify every possible limitation on officer or employee activities that might be determined incompatible under Government Code section 19990.

Nothing in this regulation shall exempt any person from applicable provisions of any other laws of this state. The standards of conduct set forth in this regulation are in addition to those prescribed in PERS' Conflict of Interest Code.

If a PERS officer or employee violates any provision of this regulation, he or she will be liable for disciplinary action to include possible dismissal or removal from office.

If a PERS officer or employee is notified that he or she has violated any provision of this regulation, or that a category of outside employment is prohibited, the officer or employee may appeal through PERS' personnel complaint procedure.

NOTE

Authority cited: Section 20120, Government Code. Reference: Section 19990, Government Code.

HISTORY

1. New section filed 1-17-89; operative 2-16-89 (Register 89, No. 11).

§558.1. Regulations Enacting Personal Trading Guidelines for CalPERS Employees Personal Trading.

Note • History

(a) Definitions.

(1) Blackout Period. Blackout Period means the three-day period of time that commences one market day before and ends one market day after a transaction in Covered Securities by CalPERS.

(2) Board Member. Board Member means the CalPERS Board members and their appointed designee(s).

(3) Covered Account.

(A) Covered Account includes the following:

(i) An account, not identified as exempt in subdivision (B), with the capability of trading Covered Securities to which a Covered Person holds legal title or over which the Covered Person has the power to place or direct trades;

(ii) Self-directed brokerage accounts offered through 401(k) or 457 accounts or sub-accounts from a current or previous employer of the Covered Person. An employer sponsored retirement savings plan that offers a brokerage account as an investment option is not a Covered Account (e.g., a Savings Plus Program account that offers a self-directed Schwab 401(k) is exempt; however, the brokerage account itself (e.g., the Schwab brokerage account) is a Covered Account).

(B) Covered Account does not include the following:

(i) The accounts in which a spouse (by virtue of marriage under section 300 of the California Family Code) or registered domestic partner (by virtue of domestic partnership established under sections 297, et seq., of the California Family Code) conducts trading activity by virtue of their employment (for example: a money manager, a financial advisor, etc.) are exempt from the regulation unless the spouse or registered domestic partner is employed by CalPERS;

(ii) Bank accounts;

(iii) Treasury direct accounts;

(iv) Mutual fund-only accounts;

(v) Employer sponsored 401(k) or 457 accounts limited to transactions in exempt securities, as identified in subdivision (6)(B) (e.g., Non self-directed accounts in the State of California's Savings Plus Program);

(vi) 403(b) accounts;

(vii) 529 accounts;

(viii) Managed Accounts; and

(ix) An account where CalPERS has investment discretion or the ability to effect transactions.

(4) Covered Person. Covered Person means a person holding any of the positions listed below.

(A) Board Members;

(B) The CalPERS Chief Executive Officer;

(D) The CalPERS Assistant Executive Officers;

(E) The CalPERS Chief Financial Officer;

(F) The CalPERS Chief Actuary;

(G) All employees of the CalPERS Office of Enterprise Risk Management;

(H) All employees of the CalPERS Investment Office;

(I) The CalPERS Division Chief of Fiscal Services and all employees of the CalPERS Investment/Fund/Retirement Program Accounting Section of the Fiscal Services Division, except the Retirement Program Accounting Units;

(J) All employees of the CalPERS Office of Audit Services, except Senior Program Evaluators (Public Agency Team) and all employees directly reporting to the Senior Program Evaluator (Public Agency Team);

(K) All employees of the CalPERS Benefit Program Policy & Planning Branch whose positions are designated in the CalPERS Conflict of Interest Code at 2 Cal. Code Regs. Section 560;

(L) All employees (and their direct supervisor and/or manager) of the CalPERS Information Technology Services Branch who have access to CalPERS real-time trade information and/or non-public investment related information by virtue of their job duties;

(M) The CalPERS General Counsel and Deputy General Counsel. The Assistant Chief Counsel (Investments) and the Staff Counsel and Senior Staff Counsel reporting to the Assistant Chief Counsel (Investments). The Assistant Chief Counsel, Senior Staff Counsel and Staff Counsel who advise the CalPERS Health Plan Administration Division of the Benefit Programs Policy and Planning Branch. The Assistant Chief Counsel, Senior Staff Counsel and Staff Counsel who advise on CalPERS' procurement or services contracts;

(N) All management staff of the Contracts and Procurement unit of the Operations Support Services Division whose positions are designated in the CalPERS Conflict of Interest Code at 2 Cal. Code Regs. Section 560;

(O) The secretary, assistant, or an individual, regardless of his or her formal job title, who serves in a functional capacity of one who provides administrative assistance to any person holding a position listed in (A) through (N), above;

(P) The spouse (by virtue of marriage under section 300 of the California Family Code) or registered domestic partner (by virtue of domestic partnership established under sections 297, et seq., of the California Family Code) of any person holding a position listed in (A) through (O), above.

(5) Covered Person Employee. Covered Person Employee means a Covered Person who is employed by CalPERS.

(6) Covered Security(ies). Covered Securities means all of the following except for the securities excluded in subdivision (6)(B);

(A) Securities includes all of the following:

(i) Publicly traded securities (including but not limited to derivatives, options, puts and calls, with the exception of publicly traded instruments identified in subsection (B)).

(ii) Unregistered debt and equity offerings;

(iii) Interests in Private Placement Vehicles;

(iv) Interests in hedge funds;

(v) Fixed income instruments;

(vi) Exchange-traded notes;

(vii) Private offerings;

(viii) Initial Public Offerings;

(ix) Interests in real estate (limited to transactions made through a Private Placement Vehicle);

(x) Exchange traded futures and options on futures

(xi) Non-Index-based exchange traded funds; and

(xii) Closed-end mutual funds.

(B) Covered Securities does not include any of the following:

(i) Money-market mutual funds and short-term investment funds;

(ii) Collective trust funds;

(iii) Open-end mutual funds (registered or non-registered);

(iv) Index-based securities (ETFs) and options on these securities;

(v) Commercial paper;

(vi) Unit investment trusts;

(vii) Certificates of deposit;

(viii) U.S. Treasury obligations;

(ix) Debt securities issued by state and municipal governments and agencies of the United States government; and

(x) Variable and fixed rate annuity insurance products and life insurance.

(7) Designated Brokerage. Designated Brokerage means a broker or broker-dealer approved by CalPERS in accordance with subdivision (b).

(8) Holding Period. Holding Period is a period of time designated by CalPERS and means the 30 calendar day period between the acquisition and sale, and the 30 calendar day period between sale and re-acquisition, of a Covered Security, on a last-in first-out basis.

(9) Managed Account. Managed Account means an account with the capability of trading Covered Securities that meets all of the following criteria:

(A) It is managed by a third party who is not a Covered Person,

(B) No Covered Person has the power to affect or ability to control or influence investment decisions in the account, and

(C) No Covered Person communicates (directly or indirectly) with the person(s) with investment discretion regarding specific trade activity in the account.

(10) Managed Account Certification. A Managed Account Certification, provided by a third-party money manager, that certifies in writing the arrangement whereby a third-party Managed Account provider has full discretion to act as investment advisor and manage any investment or trading account for another person.

(11) Market Day. Market Day means a trading day when U.S. markets are open for executing trades during the regular market session (Monday through Friday 9:30 a.m. to 4 p.m. Eastern Time).

(12) On-Line Platform. On-Line Platform means a web-based, on-line compliance platform provided by CalPERS to all Covered Person Employees and Board Members.

(13) Private Placement Vehicle. A Private Placement Vehicle means an offering of securities which are exempt from registration under Section 3(a)(11), Section 4(2), Regulation A or Rules 504, 505 or 506 of Regulation D of the Securities Act of 1933 or Section 25102 of the California Corporations Code.

(14) Restricted List. A Restricted List means the list of Covered Securities that identifies companies which CalPERS Employees and/or Board Members have information that may be material and non-public.

(15) Transfer of a Security. Transfer means to move a Covered Security to a different account(s) whereby the Covered Person continues to hold legal title, or change ownership from the Covered Person to a different party.

(16) Transfer of an Account. Transfer of an account means the transfer of one Covered Account to another account. An example of this would be the consolidation of Individual Retirement Accounts (IRAs). This activity is permissive; however, the accounts and their securities are still considered covered after the transfer.

(b) Designated Brokerages.

(1) All Covered Accounts of Covered Persons must be maintained at a Designated Brokerage.

(2) CalPERS shall maintain a list of approved Designated Brokerages. The addition of a broker or broker-dealer to this list of Designated Brokerages will be based on the broker or broker-dealer's ability to provide account activity information electronically to the On-Line Platform, CalPERS ability to meet any broker or broker-dealer account minimums, and cost. All upfront and ongoing expenses to establish the connection between the broker or broker-dealer with the On-Line Platform will be paid by CalPERS.

(3) A Covered Person Employee has 60 days from the later of (A) the commencement of his or her employment with CalPERS, or (B) the effective date of this section to move all his or her Covered Accounts and the Covered Accounts of his or her spouse or registered domestic partner to a Designated Brokerage. A Board Member has 60 days from the later of (A) the date he or she assumes office, or (B) the effective date of this section, to move all his or her Covered Accounts and the Covered Accounts of his or her spouse or registered domestic partner to a Designated Brokerage.

(4) If it is not possible to move a particular account to a Designated Brokerage, the Covered Person Employee or Board Member is responsible for obtaining an exception to maintain the Covered Account from the Division of Enterprise Compliance. These Covered Accounts will require pre-clearance as outlined under subdivision (c).

(c) Pre-Clearance Approval. Covered Person Employees and Board Members are required to obtain pre-clearance approval before the purchase, sale or transfer of Covered Securities of any size is executed in a Covered Account, unless the transaction is exempt from the requirement of pre-clearance approval under subdivision (g).

(1) Pre-Clearance Approval of Publicly Traded Covered Securities.

(A) To obtain pre-clearance approval of a publicly traded Covered Security, a Covered Person Employee or Board Member must receive approval of the proposed trade from the On-Line Platform and attest the transaction is not prohibited under subdivision (h) of this section. The On-Line Platform will require that Covered Person Employees and Board Members input standard trade details when requesting pre-clearance approval through the On-Line Platform. Information required for public securities includes: brokerage account, security type, security identifier, number of shares, the action (buy or sell), and the type of order (market or limit) as applicable.

(B) The Covered Person Employee or Board Member will normally receive immediate notification as to whether the proposed trade is approved or denied. Requests for pre-clearance approval shall only be denied if the transaction would violate any of the trading restrictions set forth in subdivisions (d), (e), (f) or (h) of this section. The notice of denial shall indicate the reason for denial. If the proposed trade is approved, the approval is valid only during the current market session, or the next open market session if the approval is received by the Covered Person Employee or Board Member after the market closes. The same standard applies for pre-clearance requests placed for extended hours trading (5am - 5pm, Monday through Friday, Pacific Time) Separate pre-clearance approval is required for extended hours trading and is only valid for that extended market trading session. Limit and stop order approvals will remain valid for all pre-clearance requests for the term of the order.

(C) If the information in a pre-clearance request is a modification to a previously approved order, the pre-clearance process must be completed again prior to undertaking the transaction.

(D) If the transaction is not executed within the approved market session, the pre-clearance process must be repeated prior to undertaking a new transaction (excluding limit and stop orders). Limit and stop order approvals will remain valid for the term of the order.

(2) Pre-Clearance Approval of Covered Securities Not Publicly Traded. To obtain pre-clearance approval of Covered Securities that are not publicly traded, a request must be submitted to the Division of Enterprise Compliance through the Pre-Clearance for Non-Public Securities accessible through the On-Line Platform. A Covered Person Employee or Board Member must input the details of the proposed transaction and attest the transaction is not prohibited under subdivision (h) of this section. The On-Line Platform will require that Covered Person Employees and Board Members input standard trade details when requesting pre-clearance approval through the On-Line Platform. Information required for private securities includes: legal name, the investment value and questions relating to whether or not potential conflicts exist with CalPERS investment activities. The Covered Person Employee or Board Member will receive notification within one CalPERS business day as to whether the proposed trade is approved or denied. Requests for pre-clearance approval will only be denied if the transaction would violate any of the trading restrictions set forth in subdivisions (d), (e), (f) or (h) of this section.

(3) Pre-Clearance Request by a Disabled Covered Person Employee or Board Member. In the event a Covered Person Employee or Board Member is unable to pre-clear trades as the result of a disability, he or she will be provided a reasonable accommodation and offered an alternative method to obtain pre-clearance with the Division of Enterprise Compliance. This alternative method will also exist for reconsideration and reporting requirements as described in subdivision (i), (j) and (k).

(4) Pre-Clearance of a Transfer of an Account. The pre-clearance of the transfer of an account from one account to another account, from one institution to another institution or a consolidation of two accounts (for example, the consolidation of two IRA accounts) is not required. For the transfer of Covered Securities between any accounts, refer to (1)(A) of this subdivision.

(d) Holding Period. Unless the transaction is a limit or stop order, or is exempted by subdivision (g), Covered Persons are prohibited from selling or transferring Covered Securities during the Holding Period. Trading activity to circumvent the Holding Period requirement is not permitted and will be considered a violation of this section.

(e) Blackout Period. Unless the transaction is exempted by subdivision (g), Covered Persons are prohibited from buying, selling or transferring Covered Securities during the Blackout Period. The Blackout Period prohibition does not apply to a Covered Person's transactions in the Covered Securities that CalPERS has traded (during the Blackout Period) in a passively managed portfolio (i.e., a portfolio that is designed to track the performance of a broad-based securities index). In addition, an exemption to the prohibition to the Blackout Period has been granted by CalPERS if pre-clearance approval of the transaction was obtained in accordance with the pre-clearance process outlined in subdivision (c) prior to CalPERS inputting a transaction in the same or equivalent Covered Security.

(f) Restricted List. Unless the transaction is exempted by subdivision (g), Covered Persons are prohibited from buying, selling or transferring a Covered Security while it is on the Restricted List. The purchase or sale of a Covered Security on the Restricted List that is the result of the execution of a previously pre-cleared limit or stop order is not a violation of this prohibition provided the Covered Security was not on the Restricted List at the time the limit or stop order was placed.

(g) Transactions Exempt from Pre-Clearance, Holding Period, Blackout Period, and Reporting Provisions. Transactions in the following types of Covered Securities, instruments or accounts are exempt from the pre-clearance requirements of subdivision (c), the Holding Period requirements of subdivision (d), the Blackout Period prohibition of subdivision (e), and the reporting requirements of subdivision (j):

(1) Direct Investment Plans (i.e., DRIPs);

(2) Scheduled transactions made through the use of an automatic investment plan (pre-clearance is required when a Covered Security is added or modified);

(3) Enrollment and scheduled transactions made through an Employer Stock Purchase Plan or Employee Stock Ownership Program;

(4) Non-volitional actions that occurred without the input of the Covered Person (e.g., option expiration, called bond, converted Covered Security, etc.).

(h) Prohibited Transactions. Covered Persons are prohibited from executing the following transactions:

(1) A transaction that would constitute insider trading under Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder or that would violate any other state or federal law.

(2) A transaction based on confidential information that a Covered Person Employee learns by virtue of his or her employment with CalPERS, position on the Board, or relationship with a Covered Person Employee.

(3) A transaction that is executed on a Covered Security while taking advantage of knowledge of a pending CalPERS order in the same Covered Security, thereby trading “in front of” CalPERS (front-running).

(4) A transaction that is effected through an account other than a Covered Account in order to circumvent the requirements of or prohibitions contained in this section.

(5) Derivatives of any kind (and any other instrument or device) used to avoid the requirements or prohibitions contained in this section.

(i) Reconsideration of Pre-Clearance Denials.

(1) If a request for a Pre-Clearance Approval under subdivision (c)(1) is denied, a Covered Person Employee or Board Member may submit a request for reconsideration through the On-Line Platform. Pre-Clearance Approval shall only be denied for violating one or more trading restrictions set forth in subdivisions (d), (e), (f), or (h) of this section. A reconsideration request must be submitted for each violation and all reconsiderations must be approved prior to placing the trade. A Covered Person Employee or Board Member will receive notification by close of business the next CalPERS business day as to whether the proposed trade is approved or denied. Denials shall indicate the reason(s) for the denial. In addition, the Covered Person Employee or Board Member must provide the following information:

(A) For denials based on a violation of the Blackout Period, the Covered Person Employee or Board Member must provide a certification that the Covered Person had no knowledge at the time the Covered Person requested Pre-Clearance Approval that CalPERS had traded or would trade the same or equivalent Covered Securities during the Blackout Period. All such requests will require review from the Division of Enterprise Compliance. The Division of Enterprise Compliance will respond to the request by close of business the next CalPERS business day.

(B) For denials based on a violation of the Holding Period, the Covered Person Employee or Board Member must provide the reason(s) why the Covered Person believes an exception to the Holding Period requirement should be approved. The On-Line Platform will allow a Covered Person Employee or Board Member to request reconsideration of his/her transaction for any of the following reasons: (1) strong price movement in a Covered Security, (2) public announcements relating to the Covered Security, or (3) a Covered Person's unexpected personal financial hardship. Requests for reconsideration based on any other reason will require review from the Division of Enterprise Compliance. The Division of Enterprise Compliance will provide final approval or denial of reconsideration requests by close of business the next CalPERS business day after receipt of the request.

(C) For denials based on Covered Securities being included on the Restricted List, the Covered Person Employee or Board Member must provide the reason(s) why the Covered Person believes an exception should be approved. All such requests will require review from the Division of Enterprise Compliance. The Division of Enterprise Compliance will respond to the request by close of business the next CalPERS business day.

(2) If a request for a Pre-Clearance Approval under subdivision (c)(2) is denied, the Covered Person Employee or Board Member may submit a request for reconsideration through the On-Line Platform. The Covered Person Employee or Board Member must provide the reason(s) why the Covered Person believes an exception should be approved. The On-Line Platform will forward the document to the Division of Enterprise Compliance for review. The Covered Person Employee or Board Member will receive notification by close of business the next CalPERS business day as to whether the proposed trade is approved or denied.

(3) If the request for reconsideration is denied under subdivision (i)(1)(A) or (B), the Covered Person may request further reconsideration of the decision by the General Counsel who will approve or deny the request. Requests for reconsideration of denials under subdivision (i)(1)(C) require joint approval of the request by the General Counsel and the Chief Operating Investment Officer. The General Counsel and Chief Operating Investment Officer may delegate the authority to make these decisions to their subordinates.

(4) All requests for reconsideration will be examined on a case by case basis after evaluation of all surrounding facts and circumstances, including without limitation, a Covered Person's unexpected financial hardships and market conditions (e.g., a declining market, public announcements about a Covered Security).

(j) Reporting.

(1) Covered Person Employees and Board Members must disclose all Covered Accounts and Managed Accounts to the Division of Enterprise Compliance through the On-Line Platform. If a Covered Person is not certain as to whether an account is a Covered Account or Managed Account, it is his or her responsibility to seek, and comply with the direction given by the Division of Enterprise Compliance.

(2) For Managed Accounts, the Covered Person Employee or Board Member is required to provide a copy of a Managed Account Certification, signed by the investment advisor who manages the account, to the Division of Enterprise Compliance within 30 calendar days of disclosing the account.

(3) A Covered Person Employee must disclose his or her Covered Accounts and Managed Accounts and the Covered Accounts and Managed Accounts of his or her spouse or registered domestic partner within 30 calendar days of (i) the commencement of a Covered Person Employee's employment as a Covered Person, or (ii) the effective date of this section, whichever is later. A Board Member must disclose his or her Covered Accounts and Managed Accounts and the Covered Accounts and Managed Accounts of his or her spouse or registered domestic partner within 30 calendar days of (i) the date the Board Member assumes office, or (ii) the effective date of this section, whichever is later. In addition, a Covered Person Employee or Board Member is required to update the On-Line Platform within 30 calendar days after new accounts are opened or if existing accounts are closed or transferred.

(4) Covered Person Employees and Board Members are required to attest annually through the On-Line Platform, and within 30 calendar days after the first day of each new calendar quarter that all of their Covered Accounts and Managed Accounts and the Covered Accounts and Managed Accounts of their respective spouses or registered domestic partners have been disclosed as required by this section. For Covered Accounts from brokers or broker-dealers that do not provide account activity information electronically to the On-Line Platform, Covered Person Employees and Board Members must report all purchases, sales and transfers of Covered Securities on a quarterly basis, within 30 calendar days after the first day of each new calendar quarter. This report will also include Covered Securities donated or transferred to, or received from, another party.

(k) Acknowledgment of Section. Within 30 calendar days of the later of (1) commencement of employment as a Covered Person (in the case of a Covered Person Employee) or the date of assuming office (in the case of a Board Member) or (2) the effective date of this section, and on April 1 of every subsequent calendar year, Covered Person Employees and Board Members must review, acknowledge and affirm through the On-Line Platform that they have read and understand this section.

(l) Violations. In the event of any alleged violation of this section 558.1, the Division of Enterprise Compliance shall conduct an investigation, which will include notification of the Covered Person Employee's direct supervisor. Violations will be treated in accordance with Government Code 19990, including but not limited to, Government Code section 19572.

NOTE

Authority cited: Sections 20120 and 20121, Government Code. Reference: Cal. Const., art. XVI, section 17; and Section 19990, Government Code.

HISTORY

1. New section filed 11-29-2012; operative 12-1-2012 pursuant to Government Code section 11343.4(c) (Register 2012, No. 48).

§559. Disclosure of Placement Agent Fees, Gifts and Campaign Contributions.

Note • History

(a) Definitions:

(1) Amendment. Amendment means any modification to an agreement with an External Manager (including by a vote, consent, or waiver by the limited partners/investors or a subset of the limited partners/investors, or separate side agreement or amendment to a side agreement) to continue, terminate, or extend the term of the agreement or the investment period, increase the commitment of funds by CalPERS, or increase or accelerate the fees or compensation payable to the External Manager.

(2) CalPERS Vehicle. CalPERS Vehicle means a corporation, partnership, limited partnership, limited liability company, association or other entity either domestic or foreign, constituting or managed by an External Manager in which CalPERS is the majority investor and that is organized in order to invest with, or retain the investment manager services of other, External Managers, i.e., a fund of funds.

(3) CalPERS Vehicle Manager. CalPERS Vehicle Manager means the general partner, managing member, or investment manager of a CalPERS Vehicle.

(4) Consultant. Consultant means an individual or firm, and includes an individual designated in a CalPERS contract as a key personnel of a Consultant firm who is contractually retained or has been appointed to a pool by CalPERS to provide investment advice to CalPERS but who do not exercise investment discretion.

(5) External Manager. External Manager means either of the following:

(A) A Person who is seeking to be, or is, retained by CalPERS or by a CalPERS Vehicle to manage a portfolio of securities or other assets for compensation, or

(B) A Person who manages an Investment Fund and who offers or sells, or has offered or sold an ownership interest in the Investment fund to CalPERS or a CalPERS Vehicle.

The External Manager usually has full discretion to manage CalPERS assets, consistent with investment management guidelines provided by CalPERS and fiduciary responsibility. A CalPERS Vehicle Manager is an External Manager.

(6) Investment Fund. Investment fund means a private equity fund, public equity fund, venture capital fund, hedge fund, fixed income fund, real estate fund, infrastructure fund, or similar pooled investment entity that is, or holds itself out as being, engaged primarily, or proposes to engage primarily, in the business of investing, reinvesting, owning, holding, or trading securities or other assets. Notwithstanding the above, an investment company that is registered with the Securities and Exchange Commission pursuant to the Investment Company Act of 1940 (15 U.S.C. Sec. 80a-1 et seq.) and that makes a public offering of its securities is not an investment fund.

(7) Person. Person means an individual, corporation, partnership, limited partnership, limited liability company, association or other entity (whether domestic or foreign).

(8) Placement Agent. Placement Agent means any Person directly or indirectly hired, engaged, retained by, or serving for the benefit of or on behalf of an External Manager or an Investment Fund managed by an External Manager, and who acts or acted for compensation as a finder, solicitor, marketer, consultant, broker or other intermediary in connection with the offer or sale to CalPERS or a CalPERS Vehicle either of the following:

(A) In the case of an External Manager within the meaning of section (a)(5)(A), the investment management services of the External Manager, or

(B) In the case of an External Manager within the meaning of section (a)(5)(B), an ownership interest in an investment fund managed by the external manager.

Notwithstanding the above, a Placement Agent shall not include any individual who is an employee, officer, director, equity holder, partner, member, or trustee of an External Manager who spends one-third or more of his or her time, during a calendar year, managing the securities or assets owned, controlled, invested or held by the External Manager.

(9) Placement Agent Information Disclosure. Placement Agent Information Disclosure is defined in subsection (b)(1).

(b) Each External Manager and CalPERS Vehicle Manager is responsible for providing:

(1) The following information (collectively, the “Placement Agent Information Disclosure”) to CalPERS staff or, if applicable, to the CalPERS Vehicle Manager within 45 days of the time investment discussions are initiated by the External Manager or the CalPERS Vehicle Manager, but in any event, prior to the completion of due diligence. For proposed and new investments, the Placement Agent Information Disclosure shall be provided by utilizing the “CalPERS Placement Agent Information Disclosure Form -- Proposed and New Investment Agreements” revised August 12, 2010 and incorporated herein by reference. For Amendments to existing investments, the Placement Agent Information Disclosure is required prior to execution of the Amendment and shall be provided by utilizing the “CalPERS Placement Agent Information Disclosure Form -- Amendments” revised August 12, 2010 and incorporated herein by reference.

(A) A statement whether the External Manager, or any of their principals, employees, agents or affiliates has compensated or agreed to compensate, directly or indirectly, any Person (whether or not employed by the External Manager or the CalPERS Vehicle Manager) to act as a Placement Agent in connection with the offer of assets, securities, or services to CalPERS or a CalPERS Vehicle.

(B) The name and relationship for each Placement Agent in connection with the investment by CalPERS, and attach a resume for each Placement Agent detailing the person's education, professional designations, regulatory licenses and investment and work experience. If any such Person is a current or former CalPERS Board member, employee or Consultant or a member of the immediate family of any such person, such information shall be specifically noted. When an entity is retained as a Placement Agent, any officer, director, or employee actively providing placement agent services with regard to CalPERS or receiving more than 15% of the placement agent fees shall provide information required by this subsection.

(C) A written copy of any and all agreements between the External Manager and the Placement Agent related to the assets, securities or services offered to CalPERS.

(D) A description of any and all compensation of any kind provided or agreed to be provided to a Placement Agent related to the assets, securities, or services offered to CalPERS, including the nature, timing and value thereof.

(E) A description of the services to be performed by the Placement Agent and a statement as to whether the Placement Agent is utilized by the External Manager for all prospective clients or only with a subset of the External Manager's prospective clients.

(F) The names of any current or former CalPERS Board members, employees, or Consultants who suggested or otherwise assisted in the retention of the Placement Agent.

(G) A statement that the Placement Agent is registered with the Securities and Exchange Commission or the Financial Industry Regulatory Authority or the Commodity Futures Trading Commission, and the details of such registration. If, however, the Placement Agent is located and operating outside of the United States and interacts exclusively with CalPERS Vehicles formed and operating outside of the United States, the statement may indicate that the Placement Agent (or any of its affiliates as applicable) is registered with a recognized non-U.S. financial regulatory authority and the details of such non-U.S. registration.

(H) A statement whether the Placement Agent, or any of its affiliates, is registered as a lobbyist with any state or national government.

(2) An update of any changes to any of the information included in the Placement Agent Information Disclosure within 14 calendar days of the date that the External Manager knew or should have known of the change in information.

(3) Representation and warranty as to the continuing accuracy of the information included in the Placement Agent Information Disclosure in any final written agreement with a continuing obligation to update any such information within 14 calendar days of the date that the External Manager knew or reasonably should have known of any material change in the information. A CalPERS Vehicle Manager does not need to represent and warrant as to the accuracy of information provided to them by an External Manager with whom the CalPERS Vehicle invests.

(c) Each Placement Agent shall, prior to acting as a Placement Agent, disclose to CalPERS (1) all campaign contributions made by the Placement Agent to any CalPERS Board Member or person(s) who has the authority to appoint a person to the CalPERS Board during the prior 24-month period and (2) all gifts, as defined in Government Code section 82028, given by the Placement Agent to any CalPERS Board Member or person(s) who has the authority to appoint a person to the CalPERS Board during the prior 24-month period. Additionally, any subsequent campaign contribution or gift made by the Placement Agent to any CalPERS Board Member or person(s) who has the authority to appoint a person to the CalPERS Board during the time the Placement Agent is receiving compensation in connection with a CalPERS investment shall also be disclosed.

(d) CalPERS staff and, except as specified below, CalPERS Vehicle Managers are responsible for all of the following:

(1) Providing External Managers with a copy of this regulation at the time that discussions are initiated with respect to a prospective investment or engagement.

(2) Confirming that the Placement Agent Information Disclosure has been received within 45 days of the time investment discussions are initiated, but in any event, prior to the completion of due diligence and any recommendation to proceed with the contract or Amendment.

(3) For new contracts and Amendments, declining the opportunity to retain or invest with the External Manager if the Placement Agent Information Disclosure reveals that the External Manager has used a Placement Agent that is not registered with the Securities and Exchange Commission or the Financial Industry Regulatory Authority or, if appropriate, the Commodity Futures Trading Commission. Notwithstanding the above, CalPERS Vehicle Managers may invest in External Managers where the Placement Agent is registered with a recognized non-U.S. financial regulatory authority consistent with subsection (b).1.g.

(4) For new contracts and Amendments, securing the agreement of the External Manager in the final written agreement between CalPERS or the CalPERS Vehicle and the External Manager to provide CalPERS or the CalPERS Vehicle the following remedies in the event the External Manager or CalPERS Vehicle Manager knew or should have known of any material omission or inaccuracy in the Placement Agent Information Disclosure or any other violation of this section:

(A) Whichever is greater, the reimbursement of any management or advisory fees paid for the prior two years or an amount equal to the amounts paid or promised to be paid to the Placement Agent as a result of the CalPERS or CalPERS Vehicle investment or engagement; and

(B) At CalPERS or the CalPERS Vehicle's option, as appropriate, and without any default, penalty or liability on the part of CalPERS or the CalPERS Vehicle to the External Manager, the authority to terminate immediately the investment management contract or other agreement with the External Manager, to withdraw without default, penalty or liability on the part of CalPERS or the CalPERS Vehicle from the limited partnership, limited liability company or other investment vehicle, or alternatively at CalPERS or the CalPERS Vehicle's discretion to cease making further capital contributions (and paying any fees on these recalled commitments) to the limited partnership, limited liability company or other investment vehicle without penalty; provided, however, that notwithstanding the foregoing, CalPERS or the CalPERS Vehicle shall pay when due all obligations due to a third party lender with respect to commitment debt secured by CalPERS or the CalPERS Vehicle's unfunded commitment.

(5) For new contracts and Amendments, confirming that the final written agreement between CalPERS or the CalPERS Vehicle and the External Manager provides that the External Manager shall be solely responsible for, and CalPERS or a CalPERS Vehicle shall not pay (directly or indirectly), any fees, compensation or expenses for any Placement Agent used by the External Manager.

(6) Rejecting any External Manager or Placement Agent's solicitation for any new offer of assets, securities, or services for five years after they have committed a violation of this section unless the Investment Committee reduces the penalty in an open session upon a showing that the violation was immaterial, unintentional, and that a reduction of the penalty is consistent with the fiduciary responsibilities of the Investment Committee as described in Article XVI, section 17 of the California Constitution.

(7) Providing copies of the Placement Agent Information Disclosure to the CalPERS Senior Investment Officer for the asset class for which the External Manager performs investment services, the CalPERS Chief Investment Officer, the CalPERS Chief Executive Officer, the CalPERS Chief of the Office of Enterprise Compliance and CalPERS' General Counsel. The CalPERS Vehicle Manager shall only be responsible for providing a copy of the Placement Agent Information Disclosure to CalPERS staff.

(8) Providing the Investment Committee with a copy of the Placement Agent Information Disclosure whenever the Investment Committee makes or approves the decision to invest with the External Manager. This obligation does not apply to the CalPERS Vehicle Manager.

(9) Compiling a monthly report containing the names and amounts of compensation agreed to be provided to each Placement Agent by each External Manager as reported in the Placement Agent Information Disclosures, providing the report to the Investment Committee, and disclosing the report to the public by posting it to the CalPERS website. The CalPERS Vehicle shall only be responsible for providing this information to CalPERS staff. The report will also include campaign contributions and gifts to CalPERS Board Members reported by Placement Agents. Notwithstanding the above, CalPERS staff may provide the required disclosure confidentially to the Investment Committee if disclosure involves a proposed investment and public disclosure will impair CalPERS' ability to maximize its investment returns. In such cases, disclosure will be made at the first open meeting of the Investment Committee that is held after the final decision is made whether to invest with the External Manager. The disclosure will include a detailed explanation why the disclosure was originally made confidential.

(10) Reporting to the Investment Committee at least quarterly any material violations of this section. The CalPERS Vehicle shall only be responsible for providing this report to CalPERS staff.

(e) External Managers and Placement Agents shall comply with this section and cooperate with CalPERS staff in meeting CalPERS staff's obligations under this section.

(f) CalPERS staff is responsible for implementing this section for CalPERS Vehicles by seeking the written agreement of CalPERS Vehicle Managers to comply with this section. If any such CalPERS Vehicle does not agree in writing to comply with this section, CalPERS staff shall report to the Investment Committee the refusal.

(g) All parties responsible for implementing, monitoring and complying with this regulation should consider the spirit as well as the literal expression of its provisions. In cases where there is uncertainty whether a disclosure should be made, this regulation shall be interpreted to require disclosure.

(h) Only the Investment Committee can grant exceptions to this regulation, except that the CalPERS Chief Investment Officer can agree to an exception for an Amendment, where the decision cannot be delayed until the next Investment Committee meeting. Any exceptions agreed to by the Chief Investment Officer shall be reported out to the public and the Investment Committee within 60 days. The Investment Committee and Chief Investment Officer shall only provide exceptions that are consistent with their fiduciary responsibilities as described in Article XVI, section 17 of the California Constitution, and provided further that all such exceptions are fully disclosed to the public.

(i) The Placement Agent Information Disclosure and their attachments shall be public records subject to disclosure under the California Public Records Act except as provided in subsection (d)(9). No confidentiality restrictions shall be placed by the External Manager or the Placement Agent on any information provided pursuant to this section.

NOTE

Authority cited: Sections 7513.85(a), 20120 and 20121, Government Code. Reference: Sections 7513.8, 7513.85 and 7513.9, Government Code.

HISTORY

1. New section filed 1-28-2011; operative 1-28-2011 pursuant to Government Code section 11343.4 (Register 2011, No. 4).

2. Change without regulatory effect amending subsection (a)(5), adding subsections (a)(5)(A)-(B) and (a)(6), renumbering subsections, amending newly designated subsection (a)(8) and adding subsections (a)(8)(A)-(B) filed 11-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 47).

§559.1. Required Contract-Related Disclosures.

Note • History

(a) Definitions.

For the purposes of this Section:

(1) Agent. Agent means any Person hired, engaged, retained by, or serving for the benefit of or on behalf of a Proposer or Contractor, who acts or acted for compensation as a finder, solicitor, marketer, lobbyist, consultant, broker, representative, agent or other intermediary to assist, directly or indirectly, in preparing a Proposal to CalPERS or in securing a Contract with CalPERS.

(2) Board Member. Board Member means a current or former member of the CalPERS Board of Administration.

(3) Contract. Contract means an agreement between CalPERS and any Person to provide CalPERS goods and/or services. Contract includes new contracts and amendments to existing contracts (including contract extensions), letters of engagement, consulting purchase orders and similar agreements.

(4) Contractor. Contractor means any Person providing services to CalPERS pursuant to a Contract.

(5) Contract-Related Disclosure Form. Contract-Related Disclosure Form means the document provided by a Proposer or Contractor to CalPERS as required in subdivision (b) hereof.

(6) Familial Relationship. Familial Relationship means a relationship by blood, marriage, registration of domestic partnership or adoption.

(7) Person. Person means an individual, corporation, partnership, limited partnership, limited liability company, association or other entity (whether domestic or foreign).

(8) Proposal. Proposal means any Person's written response to a Solicitation.

(9) Proposer. Proposer means any Person who provides a Proposal in response to a Solicitation.

(10) Solicitation. Solicitation means any process by which CalPERS seeks to procure a Person to provide goods and/or services to CalPERS, including without limitation Requests for Proposal and Invitations to Bid, regardless of amount.

(11) Staff Member. Staff Member means anyone employed at CalPERS within the five (5) years preceding the date the Contract-Related Disclosure Form is due.

(12) Things of Value. Things of Value include, but are not limited to, payments, gifts, loans, cash, meals, travel, awards, campaign contributions, charitable donations, and/or reimbursements. Things of Value do not include:

(A) Informational material such as books, reports, pamphlets, calendars, or periodicals within the meaning of Government Code section 82028, subdivision (e).

(B) Items that CalPERS determines are negligible in light of their amount, nature, purpose, or timing.

(C) Free admission, and refreshments and similar non-cash nominal benefits provided to any Board Member or Staff Member for giving a speech, participating on a panel or making a substantive formal presentation at a seminar or similar event, where the speech, participation or presentation is for official CalPERS business and the member is representing CalPERS in the course and scope of his or her official duties.

(b) Each Proposer or Contractor shall submit to CalPERS a Contract-Related Disclosure Form, signed by an individual authorized to bind the Proposer or Contractor and containing the information listed in (1) and (2) below. For Proposals, the Contract-Related Disclosure Form is due no later than the final filing date for the Solicitation. For Contract amendments, engagements, purchase orders, and any Contracts for which a Contract-Related Disclosure Form was not submitted within one (1) year preceding the execution of the Contract, the Contract-Related Disclosure Form is due no later than the date of execution. The Contract-Related Disclosure Form is required for Contracts where the total amount is $10,000 or more, and for all Proposals and Contracts that are the result of an Invitation to Bid or a Request for Proposal, regardless of amount. The Contract-Related Disclosure Form is not required when a Placement Agent Information Disclosure is required by Section 559.

(1) The name of every Agent and the following information for each identified Agent:

(A) A copy of all contracts, agreements, and other documents memorializing the relationship between the Proposer or Contractor and the Agent.

(B) A description of any financial or Familial Relationship(s) between the Agent and a Board Member or Staff Member, including the name(s) of the Board Member(s) and the Staff Member(s).

(C) Any Things of Value given or offered by the Agent to a Board Member or Staff Member during the twelve (12) months preceding the date the Contract-Related Disclosure Form is due.

(2) Any Things of Value given or offered by the Proposer or Contractor to a Board Member or Staff Member during the twelve (12) months preceding the date the Contract-Related Disclosure Form is due.

(3) If the Proposer or Contractor does not have any information requested in (1) or (2) above, the Proposer or Contractor will indicate this on the Contract-Related Disclosure Form.

(4) The Contract-Related Disclosure Form shall be provided by the System as follows:

(c) If Proposer or Contractor determines at any time the information provided on the Contract-Related Disclosure Form is or has become inaccurate, untrue, incomplete or misleading, Proposer or Contractor shall notify CalPERS and provide an updated Contract-Related Disclosure Form within 14 calendar days of the date Proposer or Contractor knew or should have known of such defect or change in the information.

(d) Failure of a Proposer or Contractor to submit a complete and accurate Contract-Related Disclosure Form pursuant to subdivision (b), or failure to timely update the Contract-Related Disclosure Form as described in subdivision (c) above:

(1) For Proposers, will result in the disqualification of the Proposer from participation in the Solicitation, if the Proposer knew or should have known the information existed as of the date the Contract-Related Disclosure Form was due.

(2) For Contractors, may result at CalPERS discretion, and without any default, penalty or liability by or on the part of CalPERS, in termination of the Contract if the Contractor knew or should have known the information existed as of the date the Contract-Related Disclosure Form was due.

(e) CalPERS will review the Contract-Related Disclosure Form, and will gather additional information as it deems necessary to make a reasonable and informed decision, and determine whether the information provided demonstrates, or contributes to the appearance of, a conflict of interest or improper influence in connection with the decision to award the Contract.

(f) If CalPERS determines there is a conflict of interest or improper influence, or the appearance of a conflict of interest or improper influence, in connection with the decision to award the Contract, CalPERS may disqualify the Proposer or terminate the Contract, as applicable.

(g) The CalPERS General Counsel may exempt a Solicitation or Contract from requiring the Proposer or Contractor to submit the Contract-Related Disclosure Form when in his or her opinion it is necessary to meet the fiduciary requirements imposed on the System. The CalPERS General Counsel will report the exemption to the CalPERS Board of Administration.

(h) The submitted Contract-Related Disclosure Form and any attachments shall be public records under the California Public Records Act except as provided in subdivision (b)(1)(A) above, to the extent such documents or information are deemed proprietary or trade secret. No confidentiality restrictions shall be placed by the Proposer or Contractor on any information provided pursuant to this section.

NOTE

Authority cited: Government Code sections 20120 and 20121. Reference: Government Code sections 20151, 20152.5, 20153, 87100 and 87103.

HISTORY

1. New section filed 5-8-2012; operative 5-8-2012 pursuant to Government Code section 11343.4 (Register 2012, No. 19).

Article 3. Public Employees' Retirement System--Conflict of Interest Code

§560. General Provisions.

The Political Reform Act (Government Code sections 81000, et seq.) requires state and local government agencies to adopt and promulgate conflict-of-interest codes. The Fair Political Practices Commission has adopted a regulation (2 Cal. Code of Regs. Sec. 18730) that contains the terms of a standard conflict-of-interest code, which can be incorporated by reference in an agency's code. After public notice and hearing, the standard code may be amended by the Fair Political Practices Commission to conform to amendments in the Political Reform Act. Therefore, the terms of 2 California Code of Regulations Section 18730 and any amendments to it duly adopted by the Fair Political Practices Commission are hereby incorporated by reference. This regulation and the attached Appendices, designating positions and establishing disclosure categories, shall constitute the conflict-of-interest code of the California Public Employees' Retirement System (“CalPERS”).

Designated employees, consultants, board members and candidates shall file their statements of economic interests with the CalPERS filing officer, who will make the statements available for public inspection and reproduction. (Gov. Code Sec. 81008.) With respect to certain employees and officials such as board members who are determined to manage public investments, within the meaning of Government Code Section 87200, CalPERS shall make and retain copies and forward the originals to the Fair Political Practices Commission. All other statements will be retained by CalPERS. While public officials who manage investments are not required to be listed in this code, those officials are listed at the end of this document for clarity. Unlike the designated positions, these officials' reporting obligations are not limited by reference to a reporting category.

CONFLICT-OF-INTEREST CODE FOR THE PUBLIC

EMPLOYEES' RETIREMENT SYSTEM

Appendix

Assigned Disclosure Designated Positions Category

ACTUARIAL & EMPLOYER SERVICES BRANCH

ACTUARIAL OFFICE

Chief Actuary 1

Deputy Chief Actuary 2

Associate Pension Actuary 2

Senior Pension Actuary 2

Supervising Pension Actuary 2

Senior Life Actuary 2

Staff Services Manager III 2

EMPLOYER SERVICES DIVISION

Division Chief 1

Staff Services Manager II (Supervising) 2

Staff Services Manager III 2

ADMINISTRATIVE SERVICES BRANCH

FISCAL SERVICES DIVISION

Division Chief 1

Accounting Administrator (All) 2

Staff Administrative Analyst (Accounting System) 2

Staff Services Manager (All) 2

HUMAN RESOURCES DIVISION

Division Chief 1

Labor Relations Manager I 2

Staff Services Manager II (Supervising) 2

Staff Services Manager III 2

OPERATIONS SUPPORT SERVICES DIVISION

Division Chief 1

Staff Services Manager (All) 2

STRATEGIC MANAGEMENT SERVICES DIVISION

Division Chief 1

DIVERSITY PROGRAM

Diversity Program Coordinator 2

Staff Counsel III (Spec) 1

ENTERPRISE PRIVACY AND PROTECTION

Privacy & Security Officer 2

Data Processing Manager III 2

EXECUTIVE OFFICE

Assistant Executive Officer (All) 1

Principal Advisor to Board President 2

EXTERNAL AFFAIRS

STAKEHOLDER RELATIONS

Staff Services Manager II (Supervising) 2

OFFICE OF GOVERNMENTAL AFFAIRS

Division Chief 1

PUBLIC AFFAIRS OFFICE

Division Chief 1

Staff Services Manager III 2

HEALTH BENEFITS BRANCH

OFFICE OF EMPLOYER & MEMBER HEALTH SERVICES

Division Chief 1

Associate Governmental Program Analyst 3

Nurse Consultant 3

Retirement Program Specialist II (Tech) 3

Retirement Program Specialist II (Supervisor) 3

Staff Services Manager I 3

Staff Services Manager II (Supervising) 3

Staff Services Manager III 2

OFFICE OF HEALTH PLAN ADMINISTRATION

Division Chief 1

Medical Consultant II 3

Nurse Consultant I 3

Pharmaceutical Consultant II 3

Research Analyst II 3

Research Program Specialist I 3

Staff Services Manager (All) 3

OFFICE OF HEALTH POLICY AND PROGRAM SUPPORT

Division Chief 1

Associate Governmental Program Analyst 3

Associate Information Systems Analyst 4

Health Program Manager III 2

Research Analyst II 3

Research Manager II 2

Research Program Specialist I 3

Research Program Specialist II 3

Staff Services Manager (All) 1

DIVISION OF OPERATIONS AND INFRASTRUCTURE SUPPORT

Division Chief 1

Associate Governmental Program Analyst 3

Staff Services Manager I 2

Staff Services Manager II (Supervising) 2

INFORMATION TECHNOLOGY SERVICES BRANCH

COMET - PENSION SYSTEM RESUMPTION PROJECT

Division Chief 1

Business Deputy 2

Staff Services Manager II (Supervising) 4

ENTERPRISE TRANSITION MANAGEMENT

Division Chief 1

INFORMATION TECHNOLOGY ADMINISTRATIVE DIVISION

Data Processing Manager III 2

Data Processing Manager II 4

INNOVATION SERVICES AND IMPLEMENTATION DIVISION

Division Chief 1

Data Processing Manager II 4

Data Processing Manager III 4

Data Processing Manager IV 4

Senior Information System Analyst (Supervising) 4

System Software Specialist III (All) 4

PSR EMPLOYER READINESS PROJECT

Project Manager, PERT 2

TECHNOLOGY SERVICES AND SUPPORT DIVISION

Division Chief 1

Data Processing Manager II 4

Data Processing Manager III 4

Data Processing Manager IV 4

System Software Specialist III (All) 4

INVESTMENT OFFICE

Administrative Assistant I 2

Administrative Assistant II 2

Associate Governmental Program Analyst 2

Investment Officer (All) 2

Staff Services Manager I 2

INVESTMENT POLICY AND BUSINESS SUPPORT

Division Chief 1

Associate Governmental Program Analyst 2

Staff Services Manager (All) 2

AFFILIATE INVESTMENT PROGRAMS

Associate Governmental Program Analyst 2

Investment Officer (All) 2

Retirement Program Specialist II (Tech) 2

Staff Services Manager I 2

Staff Services Manager II (Supervising) 2

LEGAL OFFICE

Deputy General Counsel 1

Assistant Chief Counsel 1

Staff Counsel 1

Staff Counsel III 1

Staff Counsel IV 1

OFFICE OF AUDIT SERVICES

Division Chief 1

Associate Program Evaluator 2

Program Evaluator Specialist 2

Program Evaluator 2

Senior Program Evaluator Specialist 2

Senior Program Evaluator 2

Staff Program Evaluator 2

Staff Program Evaluator Specialist 2

Staff Management Auditor 2

Supervising Management Auditor 2

OFFICE OF ENTERPRISE COMPLIANCE

Chief Compliance Officer 2

Investment Officer I 2

Staff Services Manager II (Supervising) 2

MEMBER AND BENEFIT SERVICES BRANCH

BENEFIT SERVICES DIVISION

Division Chief 1

Staff Services Manager III 2

CUSTOMER SERVICE AND EDUCATION DIVISION

Division Chief 1

Staff Services Manager III 2

MEMBER SERVICES DIVISION

Division Chief 1

Staff Services Manager II (Supervising)(JLRS) 2

Staff Services Manager III 2

OFFICE OF POLICY AND PROGRAM DEVELOPMENT

Division Chief 1

Staff Services Manager I 2

R STREET PROJECT

Division Chief 1

CONTRACTS FOR SERVICES

Consultants Who Do Not Manage Public Investments *

________

* Consultants shall be included in the list of designated positions and shall disclose pursuant to the broadest disclosure category in the code, subject to the following limitation:

The General Counsel may determine in writing that a particular consultant, although a “designated position,” is hired to perform a range of duties that is limited in scope, and thus, is not required to fully comply with the disclosure requirements in this section. Such written determination shall include a description of the consultant's duties and, based upon that description, a statement of the extent of disclosure requirements. The General Counsel's determination is a public record and shall be retained for public inspection in the same manner and location as this conflict-of-interest code. (Gov. Code Sec. 81008.)

Appendix B DISCLOSURE CATEGORIES

Category 1

Designated individuals in Category 1 must report:

All investments and business positions in business entities, and income (including gifts, loans, and travel payments).

All interest in real estate located in whole or in part within the State of California.

Category 2

Designated individuals in Category 2 must report:

All investments and business positions in business entities, and income (including gifts, loans, and travel payments) from sources which are of the type (1) to contract with CalPERS, (2) in which funds administered by the Board may be invested (including securities, real estate and business entities), or (3) to act as finder, solicitor, marketer, consultant, broker, placement agent or other intermediary to a contract or investment referenced in (1) or (2) above.

All interest in real estate located in whole or in part within the State of California

Category 3

Designated individuals in Category 3 must report:

All investments and business positions in business entities, and income (including gifts, loans, and travel payments) from sources which are of the type (1) to contract with CalPERS to provide health care services or (2) to act as a finder, solicitor, marketer, consultant, broker, placement agent or other intermediary to a contract referenced in (1).

Category 4

Designated individuals in Category 4 must report:

All investments and business positions in business entities, and income (including gifts, loans, and travel payments) from sources which are of the type (2) to sell, rent or lease information technology equipment, hardware, software, facilities, supplies or services to CalPERS or (2) to act as a finder, solicitor, marketer, consultant, broker, placement agent or other intermediary to any goods or services referenced in (1).

AGENCY POSITIONS THAT MANAGE PUBLIC

INVESTMENT FOR PURPOSES OF SECTION

87200 OF THE GOVERNMENT CODE

It has been determined that individuals in the positions listed below are officials who manage public investments, within the meaning of Government Code section 87200, and will file the Form 700 Statement of Economic Interests:

Board Members

Chief Executive Officer

Deputy Executive Officer

General Counsel

Chief Investment Officer

Director of External Affairs

Senior Investment Officer (All)

Senior Portfolio Manager (All)

Chief Operating Investment Officer

Portfolio Manager (All)

Consultants Who Manage Public Investments

NOTE

Authority cited: Article XVI, Section 17, California Constitution; Sections 87200 et seq., 87300 and 87304, Government Code. Reference: Sections 87200 et seq. and 87300 et seq., Government Code.

HISTORY

1. New article 3 (sections 560-560.9) filed 3-31-78; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 2-9-78 (Register 78, No.13). For history of former article 3 (section 560), see Register 64, No.24.

2. Amendment of article 3 (sections 560-560.9) filed 9-26-79; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 8-8-79 (Register 79, No.39).

3. Repealer of article 3 (sections 506-560.9) and new article 3 (section 560 and Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No.9).

4. Amendment filed 5-11-90; operative 6-10-90. Approved by Fair Political Practices Commission 3-30-90 (Register 90, No. 25).

5. Amendment of second paragraph and Appendix filed 2-10-95; operative 2-10-95. Submitted to OAL for printing only pursuant to Government Code section 11346.2 (Register 95, No. 6).

6. Amendment of section and Appendix filed 5-9-2000; operative 6-8-2000. Approved by Fair Political Practices Commission 3-10-2000 (Register 2000, No. 19).

7. Repealer and new section and Appendix filed 1-17-2006; operative 2-16-2006. Approved by Fair Political Practices Commission 11-7-2005 (Register 2006, No. 3).

8. Amendment of section and Appendices filed 3-2-2012; operative 4-1-2012. Approved by Fair Political Practices Commission 1-11-2012 (Register 2012, No. 9).

Article 3.5. Member Home Loan Program

§561. Scope and Authority.

Note • History

These regulations interpret and implement the Dave Elder Public Employees' Retirement System Member Home Loan Program authorized by Section 20200 of the Government Code. The regulations establish criteria and procedures for eligibility determination, loan origination, terms, servicing and termination.

NOTE

Authority cited: Sections 20120 and 20200, Government Code. Reference: Section 20200, Government Code.

HISTORY

1. New Article 3.5 (Sections 561-561.14) filed 5-18-81; effective thirtieth day thereafter (Register 81, No. 21).

2. Amendment of section and Note filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).

3. Amendment filed 12-21-2010; operative 1-20-2011 (Register 2010, No. 52).

§561.1. Program Criteria.

Note • History

Loans issued pursuant to these regulations and loan modifications to loans fully owned by the System shall provide the greatest benefit to members and annuitants consistent with the Board's role as fiduciary for all members and annuitants, the sound investment of the retirement fund, and the financial integrity of the program.

NOTE

Authority cited: Sections 20120 and 20200, Government Code. Reference: Section 20200, Government Code.

HISTORY

1. Amendment of Note filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).

2. Amendment filed 12-21-2010; operative 1-20-2011 (Register 2010, No. 52).

§561.2. Definitions.

Note • History

“Annuitant” means a person who receives an allowance from the System.

“Board” means the Board of Administration of the System as set forth in Section 20021 of the Government Code.

“Correspondent” means a lending institution which meets the System's minimum standards for appointment for mortgage loan correspondents, which may be changed from time to time, and such lending institution has entered into a correspondent's agreement with the System which is still valid at the time of origination of the loan.

“Home” means a single-family dwelling, two-family dwelling, three-family dwelling, four-family dwelling, single-family cooperative apartment, and single-family condominium within the state which the borrower intends to make his or her permanent and principal residence. “Home” does not include duplexes or other multi-unit equity interests or living units forming a part of any commercial activity.

“Loan” means a loan secured by a first note and deed of trust on a home to a borrower pursuant to the provisions of these regulations.

“Member” means a person within the provisions of section 20200(b) of the Government Code.

“Officers” means members of the Board of Administration of the California Public Employees' Retirement System, and its designees.

“Principal residence” means the home that the borrower intends to occupy as permanent and principal residence for the term of the loan. It does not include a purchase for speculative, temporary, interim, or second home purposes.

“System” means the Public Employees' Retirement System, as set forth in section 20058 of the Government Code.

NOTE

Authority cited: Sections 20120, 20121, 20200 and 20201, Government Code. Reference: Sections 20002, 20021, 20200 and 20201, Government Code.

HISTORY

1. Amendment adding new definition of ``Officers” and amendment of Note filed 6-20-2002; operative 7-20-2002 (Register 2002, No. 25).

2. Amendment of definitions of “Correspondent,” “Currently employed member” and “Home” filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).

3. Amendment filed 12-21-2010; operative 1-20-2011 (Register 2010, No. 52).

§561.3. Eligibility for Loans.

Note • History

At the time of origination, loans shall be available only to qualified members and annuitants for the purchase or refinancing of homes in accordance with the provisions of these regulations.

A member or annuitant shall not be eligible for a second loan under this program while a loan which he or she originated remains outstanding.

Effective January 1, 2002, “officers” as defined herein (Sec. 561.2) shall not be eligible for a home loan under the Member Home Loan Program.

NOTE

Authority cited: Sections 20120, 20121, 20200 and 20201, Government Code. Reference: Sections 20002, 20021, 20200 and 20201, Government Code.

HISTORY

1. Amendment filed 10-29-92; operative 11-30-92 (Register 92, No. 44).

2. Amendment adding third paragraph and amendment of Note filed 6-20-2002; operative 7-20-2002 (Register 2002, No. 25).

3. Amendment filed 12-21-2010; operative 1-20-2011 (Register 2010, No. 52).

§561.4. Loan Standards.

Note • History

To the extent that they are not in conflict with the provisions of these regulations, loan standards shall be as defined in the Board's “Minimum Standards of Acceptability for Conventional Single-Family Real Estate Mortgage Loans and FHA-VA Loans” as they exist on the effective date of these regulations, and as they may be formally changed from time to time.

NOTE

Authority cited: Sections 20120 and 20200, Government Code. Reference: Section 20200, Government Code.

HISTORY

1. Amendment of Note filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).

§561.5. Rates.

Note • History

Loans shall carry interest rates which shall be set consistent with market rates.

NOTE

Authority cited: Sections 20120 and 20200, Government Code. Reference: Section 20200, Government Code.

HISTORY

1. Amendment of Note filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).

2. Amendment filed 12-21-2010; operative 1-20-2011 (Register 2010, No. 52).

§561.6. Proof of Occupancy.

Note • History

Borrowers shall certify in their loan application that they intend to occupy the home as their principal residence. Borrowers shall notify the correspondent servicing the loan immediately when they cease to occupy the home as their principal residence.

NOTE

Authority cited: Sections 20120 and 20200, Government Code. Reference: Section 20200, Government Code.

HISTORY

1. Amendment of Note filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).

§561.7. Failure to Comply with Certification and Notice Requirement.

Note • History

Failure to comply with the provisions of Section 561.6 within ten days may cause the outstanding balance of the loan to become immediately due and payable.

NOTE

Authority cited: Sections 20120 and 20200, Government Code. Reference: Section 20200, Government Code.

HISTORY

1. Amendment of Note filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).

§561.8. Amount of Loan and Mortgage Insurance.

Note • History

At the time the loan is originated, the amount of the loan shall provide a loan to value ratio of a maximum of 100 percent for the first loan for a single-family dwelling, single-family cooperative apartment, or single-family condominium; 95 percent for the first loan on a two-family dwelling; and 90 percent for the first loan on a three-family dwelling or four-family dwelling. The portion of any loan exceeding 80 percent of value shall be insured by an admitted mortgage guaranty insurer conforming to the provisions of Chapter 2A (commencing with Section 12640.01) of Part 6 of Division 2 of the Insurance Code in an amount so that the unguaranteed portion of the loan does not exceed 75 percent of the market value of the property together with improvements thereon.

NOTE

Authority cited: Sections 20120 and 20200, Government Code. Reference: Section 20200, Government Code.

HISTORY

1. Amendment of section and Note filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).

§561.9. Term of Loan.

Note • History

The maximum term for any loan shall be 360 months.

NOTE

Authority cited: Sections 20120 and 20200, Government Code. Reference: Section 20200, Government Code.

HISTORY

1. Editorial correction of Reference cite (Register 95, No. 5).

2. Amendment of Note filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).

§561.10. Originating and Servicing of Loans.

Note • History

Subject to the Housing Financial Discrimination Act of 1977 and other applicable law, correspondents, when approved by the System, shall originate and service loans pursuant to the correspondent's agreement with the System.

NOTE

Authority cited: Sections 20120 and 20200, Government Code. Reference: Section 20200, Government Code.

HISTORY

1. Amendment of Note filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).

2. Repealer of section 561.10 and renumbering of former section 561.11 to new section 561.10, including amendment of section heading and section, filed 12-21-2010; operative 1-20-2011 (Register 2010, No. 52).

§561.11. Commitments.

Note • History

The Board shall not be obligated to purchase a loan from an originating correspondent unless all of the requirements for such purchase have been met and the Board has executed a commitment to purchase such loan.

NOTE

Authority cited: Sections 20120 and 20200, Government Code. Reference: Section 20200, Government Code.

HISTORY

1. Amendment of Note filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).

2. Renumbering of former section 561.11 to new section 561.10 and renumbering of former section 561.12 to new section 561.11 filed 12-21-2010; operative 1-20-2011 (Register 2010, No. 52).

§561.12. Purchase Price.

Note • History

With respect to all loans for which the Board has executed a commitment, the purchase price shall not exceed that amount set forth in the System's commitment.

NOTE

Authority cited: Sections 20120 and 20200, Government Code. Reference: Section 20200, Government Code.

HISTORY

1. Amendment of Note filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).

2. Renumbering of former section 561.12 to new section 561.11 and renumbering of former section 561.13 to new section 561.12 filed 12-21-2010; operative 1-20-2011 (Register 2010, No. 52).

§561.13. Purchase Price. [Renumbered]

Note • History

NOTE

Authority cited: Sections 20120 and 20200, Government Code. Reference: Section 20200, Government Code.

HISTORY

1. Amendment of Note filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).

2. Renumbering of former section 561.13 to new section 561.12 filed 12-21-2010; operative 1-20-2011 (Register 2010, No. 52).

§561.14. Administration of the Program. [Repealed]

Note • History

NOTE

Authority cited: Sections 20120 and 20200, Government Code. Reference: Sections 20099 and 20200, Government Code.

HISTORY

1. Amendment of section and Note filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).

2. Repealer filed 12-21-2010; operative 1-20-2011 (Register 2010, No. 52).

Article 4. Contracts

§565. Payment of Contributions.

Note • History

Member and employer contributions shall be received in the System's Sacramento office on or before 15 calendar days following the last day of the pay period to which they refer.

NOTE

Authority cited: Sections 20120-20124, Government Code. Reference: Sections 20532, 20536, 20537, 20572 and 20615, Government Code.

HISTORY

1. New section filed 4-30-76; designated effective 7-1-76 (Register 76, No. 18).

2. Amendment filed 8-7-86; effective thirtieth day thereafter (Register 86, No. 32).

3. Change without regulatory effect amending Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).

§565.1. Submission of Payroll and Contribution Information.

Note • History

(a) The employer shall submit payroll and contribution information using the CalPERS reporting system or in a manner as otherwise prescribed by the Board.

(b) Payroll and contribution information for each pay period shall be submitted on or before 30 calendar days following the last day of the pay period to which it refers.

(c) CalPERS shall notify the employer of payroll and contribution information reporting errors. The employer shall correct such errors within 60 calendar days of the date of the notice from CalPERS.

NOTE

Authority cited: Sections 20120-20124, Government Code. Reference: Sections 20532, 20572 and 20615, Government Code.

HISTORY

1. New section filed 4-30-76; designated effective 7-1-76 (Register 76, No. 18).

2. Amendment of section heading, section and Note filed 4-30-2012; operative 5-30-2012 (Register 2012, No. 18).

§565.2. Interest on lnsufficient Contributions.

Note • History

(a) If within a fiscal year an employer fails to pay at least 90% of the member and employer contributions due within the prescribed time set forth in Section 565, CalPERS may bill the employer for the total amount then due. If an employer fails to pay the billed amount within 30 calendar days of the bill, interest shall be charged upon the amount due from the original due date until received by CalPERS.

(b) If an employer fails to pay at least 99% of the member and employer contributions due at fiscal year end, CalPERS shall bill the employer for the total amount then due. If an employer fails to pay the billed amount within 30 calendar days of the date of the bill, interest shall be charged upon the amount due from the original due date until received by CalPERS.

NOTE

Authority cited: Sections 20120-20124, Government Code. Reference: Sections 20532, 20537, 20572 and 20615, Government Code.

HISTORY

1. New section filed 4-30-76; designated effective 7-1-76 (Register 76, No. 18).

2. Amendment filed 8-7-86; effective thirtieth day thereafter (Register 86, No. 32).

3. Amendment of section heading, section and Note filed 4-30-2012; operative 5-30-2012 (Register 2012, No. 18).

§565.3. Cost Assessment for Incomplete or Erroneous Payroll and Contribution Information.

Note • History

(a) If an employer fails to file complete or correct payroll and contribution information as required by these regulations within the time period set forth, an assessment to recover the cost of follow-up and special accounting of $200.00 for each report may be made. The assessment shall be made monthly until the posted payroll and contribution information is complete and correct.

(b) If, in the opinion of the Executive Officer, such assessment is insufficient to meet the added costs because of special circumstances, he or she shall estimate such costs and make an appropriate supplemental assessment.

NOTE

Authority cited: Sections 20120-20124, Government Code. Reference: Sections 20532, 20536, 20572 and 20615, Government Code.

HISTORY

1. New section filed 4-30-76; designated effective 7-1-76 (Register 76, No. 18).

2. Amendment filed 8-7-86; effective thirtieth day thereafter (Register 86, No. 32).

3. Amendment of section heading, section and Note filed 4-30-2012; operative 5-30-2012 (Register 2012, No. 18).

§565.4. Time Extension.

Note • History

(a) A reasonable extension of time for filing payroll reports and payment of contributions may be granted by the Executive Officer, or the alternates whom he may designate, whenever in his judgment good cause exists.

(b) This extension, at the discretion of the Executive Officer or his designated alternate, may be granted for one specific report or blanket authority over a specific time span.

(c) Requests for time extensions must be received in the Sacramento office of the System not later than 10 days prior to the due date of the reports and contributions for which the extension is being requested.

(d) Waiver of Assessments. The Executive Officer, or his designated alternate, is empowered to waive assessments of interest or penalties if in his judgment reports of member and employer contributions and payment of such contributions become delinquent as a result of conditions beyond control of the employer.

(e) Audit Discrepancies. Contributions determined to be payable as a result of audits performed by the System are not subject to this Article.

NOTE

Authority cited: Sections 20120-20124, Government Code. Reference: Sections 20532, 20536, 20537, 20572 and 20615, Government Code.

HISTORY

1. New section filed 4-30-76; designated effective 7-1-76 (Register 76, No. 18).

2. Change without regulatory effect amending Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).

§565.5. Method for Collecting Administrative Costs.

Note • History

(a) Notice of the amount of any fee for service (including fee for preparation of an actuarial valuation), or cost assessment for incomplete or erroneous payroll and contribution reporting (including late enrollment) shall be provided to the employer through the employer's preferred communication method or, if no preference has been selected, by mail.

(b) An employer shall promptly pay the amount due, or shall notify the board if the employer disputes the amount due.

(c) Failure of an employer to pay or dispute the amount due within 30 days of the date of the notice shall be deemed to be agreement as to the amount due and consent for the Board to deduct the amount shown in the notice from the employer's reserve account, or to demand payment from the employer.

(d) If an employer notifies the Board of a dispute for the amount within 30 days of the date of the notice, the Board will not deduct the amount from the employer's account until the dispute is resolved and further notice is given.

NOTE

Authority cited: Section 20121, Government Code. Reference: Sections 20283, 20535, 20536, 20572 and 20615, Government Code.

HISTORY

1. New section filed 4-30-2012; operative 5-30-2012 (Register 2012, No. 18).

§566. Contract Amendments.

Note • History

A contract amendment, or that portion thereof which requires an adjustment in the amount of monthly benefit payments which were paid or payable prior to such contract amendment, shall become operative on the first day of the month next following a period of 30 days after receipt of final documentation of the adoption of such amendment by the Board, in its Sacramento office.

NOTE

Authority cited: Section 20121, Government Code. Reference: Sections 20460, 20460.1, 20474 and 20475, Government Code.

HISTORY

1. New section filed 5-8-79; effective thirtieth day thereafter (Register 79, No. 19).

2. Change without regulatory effect amending Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).

§566.1. Employer-Paid Member Contributions (EPMC) Conversions.

Note • History

(a) A contracting agency or school employer may report the value of all or part of the normal contributions required to be paid by a member, for an individual or “group or class” of employees.

A contracting agency may also, by contract amendment(s), convert Employer-Paid Member Contributions (EPMC) to compensation earnable for a group or class of employees, only during the period of final compensation. A school employer may also, by contract amendment(s), convert EPMC to compensation earnable if all districts under the County Office of Education pass Resolutions for same.

Either provision: (1) reporting the value of EPMC as compensation; or (2) converting EPMC to compensation earnable, can only be provided to an individual if the most closely related group also has the same EPMC provision.

The contract amendment(s) to convert, must conform with the following standards as well as other applicable provisions of law:

(1) The period of final compensation must be the 12 months or 36 months immediately preceding the effective date of retirement.

(2) The provision must be fully funded for the group or class of employees, based on PERS' actuarial assumptions with the right of review set forth in subsection (b).

(3) The provision must conform to federal Internal Revenue Code standards for “qualified plan status” of the System in Section 401(a), including “non-discrimination testing”.

(4) The provision must be contained in applicable current written labor agreements as well as in adopted resolutions.

(5) The conversion of EPMC to compensation earnable is an increase in payrate for all purposes.

(6) If an employee does not provide 12 months or 36 months notice of retirement, the employer shall make necessary corrections to the payrate and report adjustments to PERS.

(7) If an employee cancels his/her retirement date, this provision shall be applied to his/her new final compensation period.

(b) A contracting agency, school employer or recognized employee organization may request a review by PERS of the additional employer contributions required to fund the contract amendment provision to convert EPMC described in subsection (a). The request must comply with the following procedures:

(1) PERS will provide written notice of the rate increase to the employer by certified mail. The employer will send a copy of PERS' written notice within ten days of its receipt to all affected employee organizations, by certified mail.

(2) The request must be submitted in writing to PERS within 30 days of the date of certified receipt of the rate increase. The request should be addressed and submitted to the Actuarial Office, Public Employees' Retirement System, P.O. Box 942709, Sacramento, California, 94229-2709.

(3) A request made by an employer must be accompanied by an ordinance or resolution adopted by the governing body stating the rationale and factual basis and a copy of the receipt of certified mail and proof of service that a written notice of the rate change was sent to specified employee organization(s). A request made by an employee group must be accompanied by a signed statement of an officer of the employee organization who is authorized to contractually bind the organization, setting forth the rationale and factual basis.

(4) The request must contain actuarial evidence, prepared by a certified actuary independent of PERS, sufficient to demonstrate why a different rate may be justified to fund the contract amendment. All economic and non-economic assumptions relied upon by the independent actuary must be submitted to PERS along with the request.

PERS will acknowledge the request in writing within 15 calendar days of its receipt. PERS will issue a substantive determination to grant or deny the request for a different rate within 45 days from the date of acknowledgement. PERS will specify the reason(s) for its grant or denial, and will give the requestor a copy of all actuarial evidence and any other factual data relied upon in making its determination.

(c) An employer or recognized employee organization directly affected by the PERS determination may petition the Board of Administration to adopt a different rate for fully funding the conversion of EPMC during final compensation, based on the administrative record established during the review. The Board will not conduct an administrative hearing in accordance with the Administrative Procedure Act, but will respond to the petition in open session at one of its regularly scheduled meetings.

Both the petitioner and PERS may submit a written statement to the Board in support of its position in advance of the meeting. This statement must not be longer than three pages, single spaced. It must be received by the Executive Office, Public Employees' Retirement System, P.O. Box 942701, Sacramento, CA 94229-2701, at least 15 days prior to the scheduled meeting.

NOTE

Authority cited: Sections 20120-20124 and 21760, Government Code. Reference: Sections 20691, 20692, 20636 and 20636.1, Government Code.

Research Note: See Internal Revenue Code Sections 401 and 415; Oden v. Public Employees' Retirement System (1994) 23 Cal.App.4th 194 [28 Cal.Rptr. 388]; City of Sacramento v. Public Employees' Retirement System (1991) 229 Cal.App.3d 1470 [280 Cal.Rptr. 847].

HISTORY

1. New section filed 7-5-94 as an emergency; operative 7-5-94 (Register 94, No. 27). A Certificate of Compliance must be transmitted to OAL by 11-2-94 or emergency language will be repealed by operation of law on the following day.

2. Certificate of Compliance as to 7-5-94 order transmitted to OAL 10-28-94; disapproved by OAL and order of repeal as to 7-5-94 order filed on 12-14-94 (Register 94, No. 50).

3. New section refiled 12-15-94 as an emergency, with amendments; operative 12-15-94 (Register 94, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-14-95 or emergency language will be repealed by operation of law on the following day.

4. Certificate of Compliance as to 12-15-94 order including amendments transmitted to OAL 4-11-95 and filed 5-23-95 (Register 95, No. 21).

5. Change without regulatory effect amending Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).

§569. Employer Paid Member Contributions.

Note • History

A contracting agency or school employer that pays all or a portion of normal member contributions based on compensation earnable, as Employer Paid Member Contributions (EPMC), must conform to the “group or class” requirements in Section 20691 of the Government Code and these regulations.

(a) Specifically, the payment of EPMC must be:

(1) Authorized in a written labor agreement;

(2) Based on earnings for normally-required duties;

(3) Based on earnings for normal hours of employment;

(4) Paid periodically, along with the earnings on which it is based;

(5) Based on earnings that are historically consistent; and

(6) Not final settlement pay.

However, the employer may qualify its payment of EPMC, by electing a cumulative “time-in-grade exception” which shall only apply to persons newly-hired into the pertinent group or class of employment.

(b) To be classified as “newly-hired,” a member of the group or class must not have been previously hired or retained by the employer in any capacity whatsoever.

(c) To elect the time-in-grade exception, the employer's governing body must adopt an enabling resolution or ordinance in which it agrees to abide by the standards in this Section 569. The exception cannot take effect until after the resolution or ordinance has been reviewed and approved by CalPERS.

(d) The time-in-grade exception may be incremental, but it cannot exceed a total of five (5) years. For example, the employer may set a three-year threshold for paying fifty percent (50%), which increases by paying twenty-five percent (25%) each year, for up to two additional years of time-in-grade.

(e) Once a newly-hired employee has satisfied the time-in-grade exception, he or she shall be entitled to payment of EPMC on the same terms that apply to all other employees in the pertinent group or class.

The exception from paying EPMC pursuant to this Section 569 is separate and apart from the exception from paying and reporting the value of EPMC as an item of special compensation pursuant to Section 571(a). Both of these exceptions are separate and apart from, or do they apply to, the process for converting EPMC to payrate during the period of final compensation pursuant to Section 20692 of the Government Code.

NOTE

Authority cited: Sections 20120-20124, Government Code. Reference: Section 20691, Government Code.

HISTORY

1. New section filed 9-22-99; operative 10-22-99 (Register 99, No. 39).

2. Change without regulatory effect amending Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).

§570. Final Settlement Pay.

Note • History

“Final settlement pay” means any pay or cash conversions of employee benefits in excess of compensation earnable, that are granted or awarded to a member in connection with or in anticipation of a separation from employment. Final settlement pay is excluded from payroll reporting to PERS, in either payrate or compensation earnable.

For example, final settlement pay may consist of severance pay or so-called “golden parachutes”. It may be based on accruals over a period of prior service. It is generally, but not always, paid during the period of final compensation. It may be paid in either lump-sum, or periodic payments.

Final settlement pay may take the form of any item of special compensation not listed in Section 571. It may also take the form of a bonus, retroactive adjustment to payrate, conversion of special compensation to payrate, or any other method of payroll reported to PERS.

NOTE

Authority cited: Sections 20120-20124, Government Code; Calif. Const. Art. XVI, Section 17. Reference: Sections 20636 and 20636.1, Government Code.

Research Note: Oden v. Public Employees' Retirement System (1994) 23 Cal.App.4th 194 [28 Cal.Rptr.2d 388]; City of Sacramento v. Public Employees' Retirement System (1991) 229 Cal.App.3d 1470 [280 Cal.Rptr. 847]; Santa Monica P.O.A. v. Bd of Admin. Public Employees' Retirement System (1978) 69 Cal.App.3d 96 [137 Cal.Rptr. 771].

HISTORY

2. Certificate of Compliance, including amendment of section, as to 7-5-94 order transmitted to OAL 10-28-94 and filed 12-14-94 (Register 94, No. 50).

3. Change without regulatory effect amending Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).

§570.5. Requirement for a Publicly Available Pay Schedule.

Note • History

(a) For purposes of determining the amount of “compensation earnable” pursuant to Government Code Sections 20630, 20636, and 20636.1, payrate shall be limited to the amount listed on a pay schedule that meets all of the following requirements:

(1) Has been duly approved and adopted by the employer's governing body in accordance with requirements of applicable public meetings laws;

(2) Identifies the position title for every employee position;

(3) Shows the payrate for each identified position, which may be stated as a single amount or as multiple amounts within a range;

(4) Indicates the time base, including, but not limited to, whether the time base is hourly, daily, bi-weekly, monthly, bi-monthly, or annually;

(5) Is posted at the office of the employer or immediately accessible and available for public review from the employer during normal business hours or posted on the employer's internet website;

(6) Indicates an effective date and date of any revisions;

(7) Is retained by the employer and available for public inspection for not less than five years; and

(8) Does not reference another document in lieu of disclosing the payrate.

(b) Whenever an employer fails to meet the requirements of subdivision (a) above, the Board, in its sole discretion, may determine an amount that will be considered to be payrate, taking into consideration all information it deems relevant including, but not limited to, the following:

(1) Documents approved by the employer's governing body in accordance with requirements of public meetings laws and maintained by the employer;

(2) Last payrate listed on a pay schedule that conforms to the requirements of subdivision (a) with the same employer for the position at issue;

(3) Last payrate for the member that is listed on a pay schedule that conforms with the requirements of subdivision (a) with the same employer for a different position;

(4) Last payrate for the member in a position that was held by the member and that is listed on a pay schedule that conforms with the requirements of subdivision (a) of a former CalPERS employer.

NOTE

Authority cited: Sections 20120 and 20121, Government Code. Reference: Sections 20630, 20636 and 20636.1, Government Code.

HISTORY

1. New section filed 7-11-2011; operative 8-10-2011 (Register 2011, No. 28).

§571. Definition of Special Compensation.

Note • History

(a) The following list exclusively identifies and defines special compensation items for members employed by contracting agency and school employers that must be reported to CalPERS if they are contained in a written labor policy or agreement:

(1) INCENTIVE PAY

Bonus - Compensation to employees for superior performance such as “annual performance bonus” and “merit pay”. If provided only during a member's final compensation period, it shall be excluded from final compensation as “final settlement” pay. A program or system must be in place to plan and identify performance goals and objectives.

Dictation/Shorthand/Typing Premium - Compensation to clerical employees for shorthand, dictation or typing at a specified speed.

Longevity Pay - Additional compensation to employees who have been with an employer, or in a specified job classification, for a certain minimum period of time exceeding five years.

Management Incentive Pay - Compensation granted to management employees in the form of additional time off or extra pay due to the unique nature of their job. Employees within the group cannot have the option to take time off or receive extra pay. This compensation must be reported periodically as earned and must be for duties performed during normal work hours. This compensation cannot be for overtime, nor in lieu of other benefits excluded under the statutes, nor for special compensation not otherwise listed in this Section 571.

Marksmanship Pay - Compensation to local police officers, county peace officers and school police or security officers who meet an established criterion such as “certification” as a marksperson.

Master Police Officer - Compensation to local police officers, county peace officers and school police or security officers who meet specified requirements, years of employment, performance standards, education, Peace Officer Standard Training (POST), and perform a specialty assignment.

Physical Fitness Program - Compensation to local safety members and school security officers who meet an established physical fitness criterion.

Value of Employer-Paid Member Contributions (EPMC) - The full monetary value of employer-paid member contributions (EPMC) paid to CalPERS and reported as an item of special compensation on behalf of all members in a group or class.

The value of EPMC is calculated on all “compensation earnable” excluding the special compensation of the monetary value of EPMC paid to CalPERS by the employer under Government Code section 20636(c)(4), thus eliminating a perpetual calculation.

(A) A resolution or ordinance of the governing body must be provided to CalPERS indicating the group or class, effective date, and the percent or amount of EPMC being paid and reported as an item of special compensation. The resolution or ordinance must be formally adopted by the employer's governing body, and submitted to CalPERS for review and approval.

(B) The resolution or ordinance must specify that the value of EPMC will be reported as an item of special compensation consistently, for all members in the affected group or class of employment -- except that the employer's governing body may elect a “time-in-grade exception” which shall only apply to persons newly-hired into the pertinent group or class of employment.

(C) To be classified as “newly-hired,” a member of the group or class must not have been previously hired or retained by the employer in any capacity whatsoever.

(D) The time-in-grade exception must be elected in the same resolution or ordinance, or by amendment thereto, as adopted by the employer's governing body for the purpose of paying and reporting the value of EPMC, pursuant to this Section 571. The exception can only be used for the value of EPMC, and not for any other item of special compensation.

1. The time-in-grade exception must be applied consistently to all newly-hired employees in the pertinent group or class.

2. The time-in-grade requirement may be incremental, not to exceed a total of five (5) years. For example, the initial requirement may be three years for paying fifty percent (50%) with increases of twenty-five percent (25%) for each additional year of time-in-grade.

3. Once the initial time-in-grade requirement has been met by a newly-hired employee, the employer shall begin paying and reporting the value of EPMC for him or her to the same extent as for all others in the pertinent group or class.

(E) To implement the time-in-grade exception, the employer's governing body must acknowledge that it may experience an upward adjustment to its employer contribution rate. The acknowledgment must be included in the resolution or ordinance by which the employer's governing body elected to pay and report EPMC as an item of special compensation, by adoption or amendment thereto.

(F) The full terms of the resolution or ordinance by which the employer's governing body elects to pay and report the value of EPMC as an item of special compensation -- along with any time-in-grade exception for newly-hired employees -- must be incorporated into the written labor agreement that pertains to the affected group or class of employment.

The time-in-grade exception from paying and reporting the value of EPMC as an item of special compensation pursuant to this Section 571, is separate and apart from the time-in-grade exception from paying EPMC pursuant to Section 569 of these regulations. Both of these exceptions are separate and apart from, nor do they apply to, the process for converting EPMC to payrate during the period of final compensation, pursuant to Section 20692 of the Government Code.

Off-Salary-Schedule Pay - Compensation in addition to base salary paid in similar lump-sum amounts to a group or class of employees. These payments are routinely negotiated through collective bargaining in lieu of increases to the salary schedule. These payments are based on a similar percent of scheduled salary not to exceed six percent (6%) per fiscal year. The contracting agency or school employer may adopt similar action for non-represented groups or classes of employment as were negotiated through collective bargaining.

(2) EDUCATIONAL PAY

The items of special compensation outlined below do not include reimbursement to an employee for the cost of an application or test, books, tuition or travel.

Applicator's Differential - Compensation to employees who are required to maintain a Qualified Pesticide Applicator's Certificate.

Certified Public Accountant Incentive - Compensation to miscellaneous employees passing an exam and receiving a license as a Certified Public Accountant.

Educational Incentive - Compensation to employees for completing educational courses, certificates and degrees which enhance their ability to do their job. A program or system must be in place to evaluate and approve acceptable courses. The cost of education that is required for the employee's current job classification is not included in this item of special compensation.

Emergency Medical Technician Pay - Compensation to safety employees who obtain and maintain an emergency medical technical (EMT) certification.

Engineering Registration Premium - Compensation to engineers who have taken and passed a California engineering proficiency exam and are registered with the State of California.

Government Agency Required Licenses - Compensation to employees receiving and maintaining a license required by government or regulatory agencies to perform their duties.

International Conference of Building Officials (ICBO) Certificate - Compensation to building inspectors who obtain and maintain an International Conference of Building Officials (ICBO) certificate in one or more certified areas.

Mechanical Premium (Brake Adjustment License, SMOG Inspector License) - Compensation to employees who obtain and maintain state-required mechanical licenses.

National Institute of Automotive Service Excellence (NIASE) Certificate - Compensation to mechanics who obtain and maintain a National Institute of Automotive Service Excellence (NIASE) certificate.

Notary Pay - Compensation to clerical employees who obtain and maintain a notary public certificate from the State of California or are deputized by an agency's chief administrative officer to sign legal or financial documents for the agency.

Paramedic Pay - Compensation to employees who obtain and maintain certification in auxiliary medical techniques.

Peace Officer Standard Training (POST) Certificate Pay - Compensation to local police officers, county peace officers and school police or security officers who obtain Peace Officer Standard Training (POST) certification.

Reading Specialist Premium - Compensation to certificated employees who have obtained special training and provide literacy instruction as part of their teaching duties.

Recertification Bonus - Compensation to local firefighters who obtain and maintain a fire safety and prevention certificate for a specified period of time.

Special Class Driver's License Pay - Compensation to school bus drivers or street maintenance employees who are required to obtain and maintain a special class driver's license to perform their duties.

Undergraduate/Graduate/Doctoral Credit - Compensation to school district employees who are required to obtain a specified degree.

(3) PREMIUM PAY

Temporary Upgrade Pay - Compensation to employees who are required by their employer or governing board or body to work in an upgraded position/classification of limited duration.

(4) SPECIAL ASSIGNMENT PAY

Accountant Premium - Compensation to rank and file employees who are routinely and consistently responsible for developing the employer's budget.

Administrative Secretary Premium - Compensation to an administrative secretary responsible for coordinating meetings, plans and other specialized activities for the governing body of the contracting agency or school employer.

Aircraft/Helicopter Pilot Premium - Compensation to safety employees who are routinely and consistently assigned as aircraft/helicopter pilots.

Asphalt Work Premium - Compensation to miscellaneous employees who are routinely and consistently assigned to mix, transport and/or apply a tar-like substance for sidewalks, roads, roofs and/or parking lots.

Audio Visual Premium - Compensation to miscellaneous employees who are routinely and consistently responsible for operating audio visual equipment.

Auditorium Preparation Premium - Compensation to school employees who are routinely and consistently assigned to prepare auditorium(s), i.e. setting up stages, lighting, props and chairs for performing arts purposes.

Bilingual Premium - Compensation to employees who are routinely and consistently assigned to positions requiring communication skills in languages other than English.

Branch Assignment Premium - Compensation to employees who are routinely and consistently assigned to a branch office or work site that is identified as “rural” or “remote” in the written labor agreement.

Canine Officer/Animal Premium - Compensation to local police officers, county peace officers and school police or security officers who are routinely and consistently assigned to handle, train and board a canine or horse. Compensation shall not include veterinarian fees, feed or other reimbursable expenses for upkeep of the animal.

Cement Finisher Premium - Compensation to miscellaneous employees who are routinely and consistently assigned to finish cement work, e.g. watering, brushing or surfacing.

Circulation Librarian Premium - Compensation to library staff who are routinely and consistently assigned to the circulation desk of the library.

Computer Operations Premium - Compensation to employees who have special knowledge of computer processes and applications.

Confidential Premium - Compensation to rank and file employees who are routinely and consistently assigned to sensitive positions requiring trust and discretion.

Contract Administrator Coordinator Premium - Compensation to school employees who routinely and consistently coordinate administrative contracts for instruction or facility maintenance.

Crime Scene Investigator Premium - Compensation to local police officers, county peace officers and school police or security officers who are routinely and consistently assigned to analyze and explore a crime scene.

Critical Care Differential Premium - Compensation to nursing staff who are routinely and consistently assigned to critical and intensive medical or psychological care areas.

D.A.R.E. Premium - Compensation to local police officers, county peace officers and school police or security officers who routinely and consistently provide training to students on drug abuse resistance.

Detective Division Premium - Compensation to local police officers, county peace officers and school police or security officers who are routinely and consistently assigned to a detective or investigative division or intelligence duties.

Detention Services Premium - Compensation to employees who are routinely and consistently assigned to areas where criminally charged persons are confined and nursing staff who are routinely and consistently assigned to an adult facility where criminally charged persons are confined.

DUI Traffic Officer Premium - Compensation to local police officers, county peace officers and school police or security officers who are routinely and consistently assigned to enforce Driving Under the Influence (DUI) of alcohol or drug laws.

Extradition Officer Premium - Compensation to local police officers and county peace officers who are routinely and consistently assigned to return a person to the custody of another jurisdiction.

Fire Inspector Premium - Compensation to “fire inspector” personnel who are routinely and consistently assigned to inspect buildings and other permanent structures for compliance with governmental safety standards.

Fire Investigator Premium - Compensation to “fire investigation” personnel who are routinely and consistently assigned to investigate causes of destructive burning.

Fire Prevention Assignment Premium - Compensation to rank and file local firefighters who are routinely and consistently assigned to specific fire inspections and investigative work during normal hours of employment that may differ from the work schedule of fire suppression personnel.

Fire Staff Premium - Compensation to rank and file local firefighters who are routinely and consistently assigned to administrative work during normal hours of employment that may differ from the work schedule of fire suppression personnel.

Flight Time Premium - Compensation to safety employees for time spent as co-pilot or crew on work related air missions.

Float Differential Premium - Compensation for nurses not specifically assigned to a specific station.

Front Desk Assignment (Jail) - Compensation to employees staffing a jail who are routinely and consistently assigned the duty of responding to questions from the public.

Fugitive Officer Premium - Compensation to local police officers and county peace officers who are routinely and consistently assigned to pursue persons who have or are fleeing from justice.

Gang Detail Assignment Premium - Compensation to local police officers, county peace officers and school police or security officers who are routinely and consistently assigned to enforce laws relating to a group of individuals banded together for unlawful activities.

Grading Assignment Premium - Compensation to employees who are routinely and consistently assigned to inspect the degree of rise or descent of a sloping surface.

Hazard Premium - Compensation to employees who are routinely and consistently exposed to toxic, radioactive, explosive or other hazardous substances or perform hazardous activities to implement health or safety procedures.

Heavy/Special Equipment Operator - Compensation to employees who are routinely and consistently assigned to operate heavy equipment or specialized equipment.

Height Premium - Compensation to employees who are routinely and consistently required to work on ladders or mechanical devices at heights over 40 feet.

Housing Specialist Premium - Compensation to city housing specialists who are routinely and consistently assigned to perform administrative functions of the housing division.

Juvenile Officer Premium - Compensation to local police officers, county peace officers and school police or security officers who are routinely and consistently assigned to enforce laws that restrict the activities of juveniles.

Lead Worker/Supervisor Premium - Compensation to employees who are routinely and consistently assigned to a lead or supervisory position over other employees, subordinate classifications, or agency-sponsored program participants.

Library Reference Desk Premium - Compensation to library staff who are routinely and consistently assigned to provide direction or resources to library patrons.

Maintenance Premiums:

Gas Maintenance Premium - Compensation to maintenance employees who are routinely and consistently assigned to inspect gas construction, repair instruments or perform pipeline welder duties.

Plumber Irrigation System Premium - Compensation to plumbers who are routinely and consistently assigned as irrigation systems plumbing specialists.

Refuse Collector Premium - Compensation to maintenance employees who are routinely and consistently assigned to collect refuse.

Street Lamp Replacement Premium - Compensation to maintenance employees who are routinely and consistently assigned to replace street lamps from an aerial bucket.

MCO Instructor Premium - Compensation to miscellaneous employees who are routinely and consistently assigned to train Motor Coach Operators, i.e. bus drivers.

Motorcycle Patrol Premium - Compensation to local police officers and county peace officers who are routinely and consistently assigned to operate and/or patrol on motorcycle.

Mounted Patrol Premium - Compensation to local police officers and county peace officers who are routinely and consistently assigned to patrol on horseback.

Narcotic Division Premium - Compensation to local police officers, county peace officers and school police or security officers who are routinely and consistently assigned to drug enforcement.

Paramedic Coordinator Premium - Compensation to paramedics who are routinely and consistently assigned to coordinate training activities in auxiliary medical techniques.

Park Construction Premium - Compensation to groundskeepers who are routinely and consistently assigned to build park equipment.

Park Maintenance/Equipment Manager Premium - Compensation to park maintenance employees who are routinely and consistently assigned to equipment management and other administrative duties.

Parking Citation Premium - Compensation to employees who are routinely and consistently assigned to read parking meters and cite drivers who have violated parking laws.

Patrol Premium - Compensation to local police officers, county peace officers and school police or security officers who are routinely and consistently assigned to patrol detail.

Police Administrative Officer - Compensation to rank and file police officers, county peace officers and school police or security officers who are routinely and consistently assigned to police administration to provide support for the police chief and command staff in the operation of the police department.

Police Investigator Premium - Compensation to rank and file local police officers, county peace officers and school police or security officers who are routinely and consistently assigned to analyze crimes or investigative accidents.

Police Liaison Premium - Compensation to rank and file local police officers, county peace officers and school police or security officers who are routinely and consistently assigned to function as a liaison between special persons, groups or courts and the police/sheriff department.

Police Polygraph Officer - Compensation to local police officers, county peace officers and school police or security officers who are routinely and consistently assigned to administer and interpret polygraph exams.

Police Records Assignment Premium - Compensation to employees who are routinely and consistently assigned to the police records division.

Rangemaster Premium - Compensation to local police officers, county peace officers and school police or security officers who are routinely and consistently assigned to supervise the target range facilities and all related activities.

Refugee Arrival Cleanup Premium - Compensation to employees who are routinely and consistently assigned to cleanup from activities directly related to refugee arrival flights.

Safety Officer Training/Coordinator Premium - Compensation to employees who are routinely and consistently assigned to instruct personnel in safety procedures.

Sandblasting Premium - Compensation to miscellaneous employees who are routinely and consistently assigned to operate sandblasting equipment.

School Yard Premium - Compensation to part-time school district employees who are routinely and consistently assigned to supervise students during recreation.

Search Pay Premium - Compensation to employees who are routinely and consistently assigned to search and process prisoners in the induction area of jails.

Severely Disabled Premium - Compensation to school instructional aides who are routinely and consistently assigned to work with severely disabled students.

Sewer Crew Premium - Compensation to laborers who are routinely and consistently assigned to repair and maintain sewer systems.

Shift Differential - Compensation to employees who are routinely and consistently scheduled to work other than a standard “daytime” shift, e.g. graveyard shift, swing shift, shift change, rotating shift, split shift or weekends.

Solo Patrol Premium - Compensation to local police officers, county peace officers and school police or security officers who are routinely and consistently assigned to patrol alone in vehicles.

Sprinkler and Backflow Premium - Compensation to groundskeepers who are routinely and consistently assigned to repair large sprinkler head controllers, valves and backflow prevention devices.

Tiller Premium - Compensation to local firefighters who are routinely and consistently assigned to operate the tiller on an aerial ladder.

Tire Technician Premium - Compensation to equipment attendants who are routinely and consistently assigned to work on heavy duty tires, e.g. for buses and large construction equipment.

Traffic Detail Premium - Compensation to employees who are routinely and consistently assigned to direct traffic.

Training Premium - Compensation to employees who are routinely and consistently assigned to train employees.

Tree Crew Premium - Compensation to maintenance workers who are routinely and consistently assigned to remove, prune, or otherwise care for trees.

Utility Meter Premium - Compensation to miscellaneous employees who are routinely and consistently assigned to re-read utility meters, repair or set and install meters.

Utilities Systems Operation Premium - Compensation to maintenance or carpenter employees who are routinely and consistently assigned to planner duties in the maintenance division.

Water Certification Premium - Compensation to miscellaneous employees who are routinely and consistently assigned to test local water quality for compliance with governmental health standards.

(5) STATUTORY ITEMS

Fair Labor Standards Act (FLSA) - Compensation paid for normal full-time work schedule including premium pay required by FLSA. For example, a firefighter's normal work schedule is 56 hours per week. FLSA states premium pay must be paid on all hours worked above 53 hours per week up to what is considered normal for employees on a full-time basis. In this example, the firefighter works 56 hours in a normal work week. Therefore compensation would be reported for 53 hours per week and FLSA premium pay would be reported for 3 hours per week. Any work performed above 56 hours per week would be considered overtime and would not be reported to PERS.

Holiday Pay - Additional compensation for employees who are normally required to work on an approved holiday because they work in positions that require scheduled staffing without regard to holidays. If these employees are paid over and above their normal monthly rate of pay for approved holidays, the additional compensation is holiday pay and reportable to PERS.

For those employees with written labor agreements providing holiday credit and allowing employees to cash out accumulated holiday credit, the cash out must be done at least annually and reported in the period earned. If a written labor agreement allows an employee to accumulate holiday credit beyond the year in which it is earned and an employee later elects to cash out accumulated holiday credit, it is not compensation for PERS purposes.

If an employee utilizes the cash out option only during his/her final compensation period, it will be considered final settlement pay and excluded from reportable compensation. If the cash out option is also utilized near his/her final compensation period, it may still be excluded based upon a review of the contracting agency or school employer's experience relating to: the number of employees in the group with this option; the number of employees who exercise this option; the frequency with which employees exercise this option; whether or not the cash out is paid periodically, and in a manner that is historically consistent; and whether or not the cash out would create an unfunded liability over and above PERS' actuarial assumptions. This review will be conducted by PERS on a case-by-base basis.

Uniform Allowance - Compensation paid or the monetary value for the purchase, rental and/or maintenance of required clothing, including clothing made from specially designed protective fabrics, which is a ready substitute for personal attire the employee would otherwise have to acquire and maintain. This excludes items that are solely for personal health and safety such as protective vests, pistols, bullets, and safety shoes.

(b) The Board has determined that all items of special compensation listed in subsection (a) are:

(1) Contained in a written labor policy or agreement as defined at Government Code section 20049, provided that the document:

(A) Has been duly approved and adopted by the employer's governing body in accordance with requirements of applicable public meetings laws;

(B) Indicates the conditions for payment of the item of special compensation, including, but not limited to, eligibility for, and amount of, the special compensation;

(C) Is posted at the office of the employer or immediately accessible and available for public review from the employer during normal business hours or posted on the employer's internet website;

(D) Indicates an effective date and date of any revisions;

(E) Is retained by the employer and available for public inspection for not less than five years; and

(F) Does not reference another document in lieu of disclosing the item of special compensation;

(2) Available to all members in the group or class;

(3) Part of normally required duties;

(4) Performed during normal hours of employment;

(5) Paid periodically as earned;

(6) Historically consistent with prior payments for the job classification;

(7) Not paid exclusively in the final compensation period;

(8) Not final settlement pay; and

(9) Not creating an unfunded liability over and above PERS' actuarial assumptions.

(c) Only items listed in subsection (a) have been affirmatively determined to be special compensation. All items of special compensation reported to PERS will be subject to review for continued conformity with all of the standards listed in subsection (b).

(d) If an items of special compensation is not listed in subsection (a), or is out of compliance with any of the standards in subsection (b) as reported for an individual, then it shall not be used to calculate final compensation for that individual.

NOTE

Authority cited: Sections 20120-20124, 20636(c)(6) and 20636.1(c)(6), Government Code. Reference: Sections 20630, 20636, 20636.1 and 20691, Government Code.

Research Note: See Oden v. Public Employees' Retirement System (1994) 23 Cal.App.4th 194 [28 Cal.Rptr.2d 388]; City of Sacramento v. Public Employees' Retirement System (1991) 237 Cal.App.3d 1470 [280 Cal.Rptr. 847]; City of Fremont v. Board of Administration (1989) 219 Cal.App.3d 1026 [263 Cal.Rptr. 164]; Guelfi v. Marin County Employees' Retirement Association (1983) 145 Cal.App.3d 297 [193 Cal.Rptr. 343]; Rose v. City of Hayward (1981) 126 Cal.App.3d 926 [179 Cal.Rptr. 287]; Santa Monica P.O.A. v. Bd. of Admin. Public Employees' Retirement System (1978) 69 Cal.App.3d 96 [137 Cal.Rptr.771].

HISTORY

2. Certificate of Compliance as to 7-5-94 order transmitted to OAL 10-28-94; disapproved by OAL and order of repeal as to 7-5-94 order filed on 12-14-94 (Register 94, No. 50).

4. Certificate of Compliance as to 12-15-94 order including amendments transmitted to OAL 4-11-95 and filed 5-23-95 (Register 95, No. 21).

5. Amendment of subsections (a)-(a)(1), new subsections (a)(1)(A)-(F) and amendment of Note filed 9-22-99; operative 10-22-99 (Register 99, No. 39).

6. Amendment of subsection (a)(5) filed 5-22-2002; operative 6-21-2002 (Register 2002, No. 21).

7. Amendment of subsection (b)(1), new subsections (b)(1)(A)-(F) and amendment of Note filed 7-11-2011; operative 8-10-2011 (Register 2011, No. 28).

8. Change without regulatory effect amending Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).

§572. Employees Not In a Group or Class of Employment.

Note • History

An employee who is not in a “group or class of employment” within the meaning of the Public Employees' Retirement Law, may request an exception from the “average increase” procedure set forth in Sections 20636 and 20636.1. The local employer may request this exception on the employees behalf.

The request must be submitted in writing, no later than 30 days after the employee first received PERS' estimate of benefits payable. If the estimate is mailed, the 30-day deadline is thirty-five calendar days after the postmark date. The request must be submitted to the:

CUSTOMER ACCOUNT SERVICES DIVISION
PUBLIC EMPLOYEES' RETIREMENT SYSTEM
P.O. BOX 942704
SACRAMENTO, CA 94229-2704

PERS will acknowledge the request in writing, within 15 calendar days of its receipt. PERS will grant or deny the request, and specify its reasons in writing, within 45 days from the date of acknowledgement. PERS' decision to grant or deny the request will be based on a comparison between increased compensation earnable, as reported for the employee during his or her period of final compensation and compensation earnable reported for the group or class of employees in his or her same membership classification.

PERS will review the full history of payroll reporting for the employee, and all relevant payroll reporting for the membership classification, as to both payrate and special compensation. In no case will an exception be granted if PERS determines that the comparative increase in compensation earnable by the employee fails to conform with the following standards set forth in subsections (a) and (b) below as well as other applicable provisions of the law.

(a) If reported in payrate, the increased compensation must be:

(1) Contained in a written labor agreement;

(2) Part of normally-required duties;

(3) Performed during normal hours of employment;

(4) Paid periodically as earned;

(5) Historically consistent with prior payments for the membership classification; and

(6) Not final settlement pay.

(b) If reported in special compensation, the increased compensation must be:

(1) Contained in a written labor agreement;

(2) Part of normally-required duties;

(3) Performed during normal hours of employment;

(4) Paid periodically as earned;

(5) Historically consistent with prior payments for the membership classification;

(6) Listed as special compensation in Section 571; and

(7) Not final settlement pay.

(c) Reported increased compensation must not constitute “final settlement pay” within the meaning of Section 570 and Section 20636 and 20636.1 of the Government Code. It must conform with federal Internal Revenue Code standards in Section 415 for maintaining “qualified plan status” of the System, and in Section 401, including the “non-discrimination testing”.

If the request is denied, the employee or employer may appeal PERS' decision to the Board by the procedure set forth in Sections 555.1-555.4, and Section 20134 of the Government Code.

NOTE

Authority cited: Sections 20120-20124, Government Code. Reference: Sections 20636 and 20636.1, Government Code; IRC Sections 401, 415.

Research Note: Oden v. Public Employees' Retirement System (1994) 23 Cal.App.4th 194 [28 Cal.Rptr.2d 388]; City of Sacramento v. Public Employees' Retirement System (1991) 229 Cal.App.3d 1470 [280 Cal.Rptr. 847]; Santa Monica P.O.A. v. Bd. of Admin. Public Employees' Retirement System (1978) 69 Cal.App.3d 96 [137 Cal.Rptr. 771].

HISTORY

2. Certificate of Compliance, including amendment of section heading and text, as to 7-5-94 order transmitted to OAL 10-28-94 and filed 12-14-94 (Register 94, No. 50).

3. Change without regulatory effect amending first and third paragraphs, subsection (c) and Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).

§573. Optional Membership.

Note • History

Compensation and compensation earnable for members in the optional categories authorized in Section 20322 (referred to hereafter in this regulation as “optional members”), must be reported by contracting agency and school employers pursuant to the same statutory and regulatory requirements that apply to all other members.

(a) Specifically, said compensation shall conform to the “group or class” requirements that apply to payrate and items of special compensation, as shown below:

(1) Contained in a written labor agreement;

(2) Part of normally-required duties;

(3) Performed during normal hours of employment;

(4) Paid periodically as earned;

(5) Historically consistent with prior payments for the membership classifications; and

(6) Not final settlement pay.

(b) For persons who become optional members before July 1, 1994 by virtue of their position as a “city attorney” or “assistant city attorney” the following standards shall also apply:

(1) If compensation or compensation earnable (whether reported as payrate or special compensation) are set forth in a contract for legal services, then that contract shall be the equivalent of a written labor agreement.

(2) Compensation and compensation earnable shall be limited to payment for work performed by the optional member in his or her individual capacity as the city attorney or assistant city attorney, and shall not include payment for work performed by other persons (e.g., partner, associate, consultant) in the office of city attorney or a law firm that provides the services of a city attorney.

NOTE

Authority cited: Sections 20120-20123, 20636 and 20636.1, Government Code. Reference: Sections 20322, 20630, 20636 and 20636.1, Government Code.

HISTORY

1. New section filed 9-22-99; operative 10-22-99 (Register 99, No. 39).

2. Change without regulatory effect amending Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).

Article 5. Member Contributions

§575. Refund of Additional Contributions.

Note • History

Contributions made by a member pursuant to Section 20630, Government Code, in excess of normal contributions, shall be refunded on written application filed in the office of the board at any time; provided, however, that such refund may not be made within one year following the date of any previous refund of additional contributions, and provided further that a partial refund shall not be made. Such refund may be authorized by the board notwithstanding the limitations herein with respect to the date of previous refund upon a showing of good cause therefor.

NOTE

Authority cited: Section 20120, Government Code. Reference: Section 20630, Government Code.

HISTORY

1. Amendment filed 1-30-80; effective thirtieth day thereafter (Register 80, No. 5).

§575.1. Deposit of Contributions.

Note • History

Any deposit of contributions for, but not limited to, service credit elections, except those made pursuant to Government Code section 21073.1, to be made in installments, must be made by payroll deduction upon such installment plan as may be elected, subject to the following conditions:

(a) Installments must be uniform for each payroll period;

(b) The installments may not be less than $15.00 per month (or the semi-monthly, bi-weekly or quadri-weekly equivalent); and

(c) The number of installments may not exceed 180 monthly (or the semi-monthly, bi-weekly or quadri-weekly equivalent) payroll periods.

(d) Interest on the unpaid balance of the amount payable to the Public Employees' Retirement Fund, except as provided in subsections (e) and (f), shall accrue at the member interest crediting rate provided in section 20178 on the effective date of the member's election or contribution adjustment.

(e) Interest on the unpaid balance of the amount payable to the Public Employees' Retirement Fund for a member's election to receive service credit subject to section 21052 shall accrue at the actuarial interest rate used in the calculation of the benefit liability.

(f) Interest on the unpaid balance of the amount payable to the Judges' Retirement Fund or the Judges' Retirement Fund II for a judge's election to receive service credit, pursuant to section 75030.8 or 75506.5, shall accrue at the actuarial interest rate used in the calculation of the benefit liability.

For purposes of this section, the applicable interest rate provided in subsections (d), (e), and (f) shall be applied from the effective date of the service credit election or contribution adjustment through the completion of payments.

An installment plan elected by a member or judge may be modified to extend the period of payment upon the Board's finding that the existing plan is effecting a hardship for the member or judge provided, however, that the plan as extended does not result in a total number of deductions, including the number already paid, exceeding the maximum permitted under this section and otherwise complies with this section.

NOTE

Authority cited: Sections 20120 and 20121, Government Code. Reference: Sections 20750 and 21050, Government Code.

HISTORY

1. New section filed 2-16-72; designated effective 4-1-72 (Register 72, No. 8).

2. Amendment of section and Note filed 5-8-2000; operative 6-7-2000 (Register 2000, No. 19).

3. Amendment of section and Note filed 7-6-2006; operative 8-5-2006 (Register 2006, No. 27).

§575.2. Deposit of Contributions Pursuant to Government Code Section 21073.1.

Note • History

Any deposit of contributions for a member service credit election pursuant to Government Code section 21073.1, to be made in installments, must be made by payroll deduction upon such installment plan as may be elected by the member, subject to the following conditions:

(a) Installments must be uniform for each payroll period;

(b) The installments may not be less than $15.00 per month (or the semi-monthly, bi-weekly or quadri-weekly equivalent); and

(c) The number of installments may not exceed 180 monthly (or the semi-monthly, bi-weekly or quadri-weekly equivalent) payroll periods.

(d) Interest on the unpaid balance of the amount payable to the Public Employees' Retirement Fund shall accrue at the member interest crediting rate provided in section 20178 on the effective date of the member's election.

For purposes of this section, the interest rate provided in subsection (d) shall be applied from the effective date of the member's election through the completion of payments.

An installment plan adopted by a member may be modified to extend the period of payment upon the Board's finding that the existing plan is effecting a hardship for the member provided, however, that the plan as extended does not result in a total number of deductions, including the number already paid, exceeding the maximum permitted under this section and otherwise complies with this section.

NOTE

Authority cited: Sections 20120, 20121 and 21073.1, Government Code. Reference: Section 21073.1, Government Code.

HISTORY

1. New section filed 5-4-2000; operative 5-4-2000 pursuant to Government Code section 11343.4(d). Exempt from OAL review pursuant to Government Code section 21073.1 (Register 2000, No. 18).

2. Amendment of introductory paragraph, new subsection (d) and new penultimate paragraph filed 7-6-2006; operative 8-5-2006 (Register 2006, No. 27).

§576. Additional Contributions by Employer.

Note • History

(a) An employer's election, pursuant to Section 20710, Government Code, to make additional contributions, shall be made by filing with the Board a copy of formal action taken by the employer's governing body. Such election shall be effective with respect to payroll periods beginning on and after the date specified by the governing body but no earlier than the 30th day following filing in the office of the Board.

(b) An employer's election to make such additional contributions is subject to the following conditions:

(1) Such additional contributions must be separately identified and reported to the Board on the regular payroll reports of the employer each time a payment is made.

(2) The employer shall provide each affected employee with an annual and accumulative statement of the specific amounts contributed by the employer to that employee's additional contribution account.

NOTE

Authority cited: Section 20121, Government Code. Reference: Sections 20016, 20710, 20711 and 20712, Government Code.

HISTORY

1. New section filed 2-26-75; effective thirtieth day thereafter (Register 75, No. 9).

2. Amendment of subsection (b) filed 6-18-76; effective thirtieth day thereafter (Register 76, No. 25).

3. Change without regulatory effect amending subsection (a) and Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).

Article 5.5. State Contribution Payment Schedules

§577. Transfer of State Employee Contributions.

Note • History

The member portion of retirement contributions for State of California employees shall be paid to the California Public Employees Retirement System on or before the first business day after the last day of the pay period to which they refer.

NOTE

Authority cited: Sections 20120 and 20121, Government Code. Reference: Section 20771, Government Code.

HISTORY

1. New article 5.5 (sections 577-578) and section filed 10-18-2012; operative 11-19-2012 (Register 2012, No. 42).

§578. Transfer of State Employer Contributions.

Note • History

The State of California employer portion of retirement contributions due to the California Public Employees Retirement System (System) shall be paid to the System on the dates specified:

(a) For payroll periods ending in the months of July, August and September payment of contributions due shall be made to the System no later than the first business day in October.

(b) For payroll periods ending in the months of October and November payment of contributions due shall be made to the System no later than December 17 or the prior business day if December 17 is a weekend or state holiday.

(c) For the payroll period ending in the month of December payment of contributions due shall be made to the System no later than the first business day in January.

(d) For payroll periods ending in the months of January and February payment of contributions due shall be made to the System no later than April 16 or the next business day if April 16 is a weekend or state holiday.

(e) For the payroll period ending in the month of March payment of contributions due shall be made to the System no later than the first business day in April.

(f) For payroll periods ending in the months of April, May and June payment of contributions due shall be made to the System no later than the first business day in July.

NOTE

Authority cited: Sections 20120 and 20121, Government Code. Reference: Sections 20826 and 20831, Government Code.

HISTORY

1. New section filed 10-18-2012; operative 11-19-2012 (Register 2012, No. 42).

Article 6. Service Credit

(No Rules Filed)

Article 7. Benefits

§580. Dependency.

Note • History

A person is receiving at least one-half of his support from a member if the member is making regular contributions in cash or kind to such support to the extent of one-half or more thereof.

(a) “Support,” includes food, shelter, clothing, ordinary medical expenses, and other ordinary and customary items of maintenance of the persons supported at the standard of living in the occupation or employment engaged in by the person supported while he was employable. In determining support at the time of death, consideration may be given to support during the year preceding death. To the extent that the person supported and other persons derive support from a common fund or receive a common item of support and expenditures cannot be identified as to person and disproportionate support requirements are not shown, the person's support shall be established by equal proration of the total expenditures between the persons.

(b) A contribution made to a fund to which several persons contribute and from which several members of a family derive common support will be presumed made to the support of each person deriving support from the fund in the proportion of such contribution to the total contribution. Community funds of a member and a member's spouse contributed to the support of the member's parent or parents will be considered a contribution by the member to a maximum of the amount of community funds or property considered the property of the member under this rule.

(c) Any person claiming a benefit as a dependent parent shall file an affidavit or statement under penalty of perjury concerning the income and support in such form or forms and in such detail as may be required by the Executive Officer.

NOTE

Authority cited: Section 20120, Government Code. Reference: Sections 20041, 21263, 21263.4, and 21382.2, Government Code.

HISTORY

1. Amendment filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32).

2. Editorial correction of Reference cite (Register 95, No. 5).

§580.1. Full-Time Student--Educational Institution.

Note • History

For purposes of any benefit payable to or because of a child who is a full-time student, a full-time student is one who is in full-time attendance at an educational institution if he is carrying a subject load which is considered full time for day students under the standards and practices of the educational institution. However, a student will not be considered in full-time attendance if:

A. He is enrolled in a junior college, college, or university in a course of study of less than 13 school weeks' duration; or

B. He is enrolled in any other educational institution and either the course of study is less than 13 school weeks' duration or his scheduled attendance is at the rate of less than 20 hours a week.

A high school, trade or vocational school, junior college, college or university is an “educational institution” if:

(a) It is operated or directly supported by the United States, by a State or local government or a political subdivision thereof; or

(b) It has been approved by a State, or accredited by a State-recognized or nationally-recognized accrediting agency; as determined by the Executive Officer.

This definition includes both public and private schools which meet the requirements of (a) or (b) above.

Survivor benefits will be reduced or discontinued effective the month following loss of student status as determined under forms and procedures established by the Executive Officer.

NOTE

Authority cited: Sections 20120-20124, Gov. Code. Reference: Section 21382.5, Gov. Code.

HISTORY

1. New Section filed 10-22-69 as an emergency; designated effective 11-10-69 (Register 69, No. 43).

2. Certificate of Compliance--Section 11422.1, Gov. Code, filed 12-30-69 (Register 70, No. 1).

3. Amendment filed 2-26-75; effective thirtieth day thereafter (Register 75, No. 9).

§581. Retirement Allowance Deductions.

Note • History

(a) Approval of Group Insurance Plans.

Any contracting agency under the Public Employees' Retirement System having an insurance plan for its active and retired employees or retired employees or any association composed of employees and persons retired under the Public Employees' Retirement System, or of such retired persons having an insurance plan for its membership, may submit such plan to the board for approval.

(1) Eligibility.

Any person retired under the Public Employees' Retirement System and any beneficiary under the system who is eligible for coverage under an insurance plan approved by the board, may authorize, pursuant to these rules, deductions to be made from monthly payments of his retirement allowance or benefit for payment of premiums, dues, or charges under such plan.

(2) Forms and Procedures.

The executive officer shall prescribe, subject to these rules, procedures and forms for the filing of authorizations.

(3) Place of Filing.

Authorization shall be filed in the office of the board provided, however, that the executive officer may prescribe in the alternative, filing with the insurer or nonprofit membership corporation issuing the insurance plan, if such insurer or corporation has undertaken in a writing filed with the board to:

(A) Supply to the board statements of deductions as specified in authorizations received by it and to save the State, the board and its employees harmless from liability for any errors in withholding or transmitting deductions except for moneys actually withheld but not transmitted.

(B) Keep all authorizations received by it available for inspection by authorized representatives of the board.

(4) Time of Filing.

Authorizations may be made effective only with regard to retirement allowance payments and premiums, dues or charges becoming due more than 30 days after the date of receipt in the office of the board of the authorization, or, where the alternative procedure under these rules is prescribed by the executive officer, of the insurer's or nonprofit membership corporation's statement of authorized deductions.

(5) Authorization Changes.

Deductions may be changed in amount or terminated in the manner provided for filing of authorizations and may be made effective only as to retirement allowances payable more than 30 days after notice is received in the office of the board.

(6) Refunds.

Any amounts which have been deducted and paid to an insurer or nonprofit membership corporation and which are refundable under the insurance plan because of death of the retired person, shall be refunded to the board for distribution under the Public Employees' Retirement Law.

(b) Forms and Procedures for Deductions of National Service Life Insurance.

The executive officer shall provide forms and procedures for authorization by persons retired under the Public Employees' Retirement System of deductions from retirement allowances for payment of premiums on National Service Life Insurance or United States Government Converted Insurance.

(1) Time and Place of Filing.

Authorizations under this article shall be filed in the office of the board and may be given effect only as to retirement allowances payable and premiums becoming due more than 30 days after receipt of the authorization in the office of the board.

(1) Eligibility and Conditions.

A retired person who was a state member and who is a member of any bona fide association comprised principally of employees and former employees of agencies of the State of California may authorize monthly deduction of dues of such Association, or any retired member or beneficiary who is a member of a credit union may authorize monthly deductions for payments or shares to credit unions from his retirement allowance subject to the following conditions:

(A) The Association or credit union has filed with the Public Employees' Retirement System a written request for such deduction in accordance with this subsection, and the executive officer finds in connection with such request that there is compliance with this subsection.

(B) The retired person's written authorization for deduction is filed with the Association or credit union.

(C) The Association or credit union will keep all authorizations received by it available for inspection by an authorized representative of the Board.

(D) The Association or credit union has filed an agreement which holds the Retirement System harmless from any liability except for dues or payments actually withheld but not transmitted.

(E) Any dues or payments deducted in error shall be offset, or refunded to the Board for distribution in accordance with the Public Employees' Retirement Law.

(F) The allowance of the retired person continues sufficient in amount to permit such deductions after giving effect to requests for income tax deductions and medical-hospital and life insurance premiums.

(2) Forms and Procedures.

The executive officer shall prescribe, subject to these rules, procedures and forms for the implementation of this subsection.

(3) Cost Reimbursement.

The executive officer shall determine the administrative costs from time to time for processing and making such deductions and is authorized to collect such charges by either a withholding from amounts deducted for the Association or credit union or by a direct billing.

(4) Time and Place of Filing.

(A) Authorizations for deductions under this section may be made effective only with regard to retirement allowances payable more than 30 days after receipt in the office of the Board in Sacramento of the Notice of Authorization. No retroactive deductions will be taken.

(B) Deductions may be changed in amount or terminated in the manner provided for filing Notices of Authorization and may be made effective only as to retirement allowances payable more than 30 days after notice is received in the Sacramento office of the Board.

NOTE

Authority cited: Section 20120, Government Code. Reference: Section 20135, Government Code.

HISTORY

1. Amendment of subsection (c) filed 2-3-78; effective thirtieth day thereafter (Register 78, No. 4). For prior history, see Register 70, No. 16.

§582. Beneficiary Designations.

Note • History

A member may designate as beneficiary to receive any benefit payable to a member's designated beneficiary upon death before or after retirement, any person or persons, including a corporation; provided, however, that a beneficiary designated to receive payments under an optional settlement based on life contingency may be only a natural person. The designation must be in writing, except as otherwise provided in this section, must give the name of the person and his address, and must be filed in the office of the board in Sacramento, California. The right of a beneficiary to receive payment of a benefit is contingent on his survival at the time of the member's death, and the member may designate a beneficiary or beneficiaries on the contingency that the first beneficiary does not so qualify.

A member may, subject to the conditions set forth in this paragraph, designate as beneficiaries or contingent beneficiaries, other than a beneficiary to receive payment under an optional settlement based on life contingency of the beneficiary, his children or his grandchildren by class rather than by naming the individuals as otherwise required in this section. For purposes of such designation, “children” shall mean natural or adopted children and “grandchildren ” shall mean natural or adopted children of the member's “children,” and shall include such children or grandchildren in being at the time of the member's death or who are conceived before the member's death and born thereafter. Payments of a benefit by the system on the basis of a determination in good faith of the existence and identity of the members of a class so designated shall constitute a complete discharge and release of the system from further liability for the benefit, notwithstanding that it may not have discovered a beneficiary otherwise entitled.

NOTE

Authority cited: Section 20120, Government Code. Reference: Sections 20303, 20037, 21204 and 21205, Government Code.

HISTORY

1. New section filed 12-15-61; effective thirtieth day thereafter (Register 61, No. 25).

2. Amendment filed 12-13-66; effective thirtieth day thereafter (Register 66, No. 44).

§583. Election of Survivor Coverage.

Note • History

An election of 1959 survivor allowance coverage as provided for by Section 21577 of the Government Code shall be subject to the following conditions:

(1) Notice of right to elect 1959 survivor coverage shall be provided by the System to contracting agencies subject to Chapter 9, Article 6 of the Government Code. It shall be the contracting agency's responsibility to notify eligible members of their right to elect hereunder.

(2) Eligible members who are employees of a contracting agency on the date such agency becomes subject to Government Code Section 21577 shall have the right to elect 1959 survivor allowance coverage. Such election must be made prior to or within 30 days of the effective date of the contracting agency's amendment to become subject to Section 21577.

(3) Members who are employees of a contracting agency on the date such agency becomes subject to Government Code Section 21577, and who elected not to be covered during the initial election period, shall have a second right of election within a three-month period beginning nine months following the effective date of the agency's contract for such coverage.

(4) To be valid, elections may be made only by the member personally in writing in the format prescribed by the Executive Officer and must be received at an office of the Board within the prescribed time periods. A member's failure to submit a valid election will be deemed an election to not be covered by the 1959 survivor allowance.

(5) A contracting agency's election to be subject to Government Code Section 21572 in lieu of Government Code Section 21571 shall not create a new right of election by employees of that agency.

(6) A member's effective date of coverage shall be (a) the date a valid election is received by the Board, during the first election period; or (b) the date which is one year following the effective date of the agency's contract for such coverage with respect to valid elections during the second election period; or (c) the date of membership for members entering employment after the date of the agency's contract for such coverage.

(7) Contributions for a member so electing shall begin in the pay period during which coverage becomes effective.

NOTE

Authority cited: Sections 20120-20124, Government Code. Reference: Sections 21571, 21572, 21576, 21577 and 21583, Government Code.

HISTORY

1. New section filed 10-22-69 as an emergency; designated effective 11-10-69 (Register 69, No. 43).

2. Certificate of Compliance--Section 11422.1, Gov. Code, filed 12-30-69 (Register 70, No. 1).

3. Amendment filed 4-30-74 as an emergency; effective upon filing (Register 74, No. 18).

4. Amendment filed 9-6-74; effective thirtieth day thereafter (Register 74, No. 36).

5. Repealer and new section filed 6-11-82; effective thirtieth day thereafter (Register 82, No. 24).

6. Change without regulatory effect amending first paragraph, subsections (2)-(3) and (5) and Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).

§585. Retirement Optional Settlement 4.

Note • History

(a) For purposes of any request for a new form of optional settlement 4 subject to the approval of the board, the request must comply with applicable federal and state requirements and the following administrative requirements. If staff determines a request for a new option 4 allowance type should be denied based upon administrative criteria, stall will bring the request before the board to either approve or deny the request.

(1) There is no existing option or option 4 type that could be used to accomplish substantially the same results.

(2) Each beneficiary would receive a minimum of 25% of the member's monthly allowance. This minimum would not apply in the case of a community property interest.

(3) Each beneficiary is alive and named at the time of the designation.

(4) Upon the death of a beneficiary, there would be no continuing allowance to a secondary or contingent beneficiary.

(5) Any proposed change in future allowance payment to the retired annuitant or named beneficiary is based upon an easily identifiable event, such as a specified date or death of the retired annuitant.

(6) The requested annuity is a combination of life annuities, joint life annuities (on no more than two lives), a temporary life annuity, an annuity certain, or lump sums payable upon the death of the member or a beneficiary.

(7) The total of all lump sums payable upon death cannot exceed the amount of the member's contributions with interest at the time of retirement.

(8) The total amount (excluding lump sums payable upon death) payable in any month cannot exceed three times the amount that would have been payable for that month if the member had elected an unreduced allowance and was alive in the month.

(9) It is reasonable to expect that at least 100 members will elect the option within two years of the date that the option first becomes available.

(b) The Board may, in its discretion, establish a review period for any approved option 4 allowance type to monitor conformity with the standards in subsection (a) and may, on a prospective basis, terminate any current or added option 4 allowance type in subsection (c) that does not conform to those standards.

(c) The following alternative forms of option 4 allowance have been approved by the Board. However, the amount to be paid to the beneficiary cannot be more than what the member could provide the beneficiary under option 2W.

(1) “Specific Dollar Amount to a Beneficiary”

The member may specify that upon his or her death after retirement, a monthly allowance in an amount determined by the member be paid to a named beneficiary for life.

(2) “Specific Percentage to a Beneficiary”

The member may specify that upon his or her death after retirement, a monthly allowance in an amount equivalent to a specified percentage of the member's unmodified allowance be paid to a named beneficiary for life. Or, a member may specify that upon the death of either the member or named beneficiary, the survivor would receive a certain percentage of the member's unmodified allowance.

(3) “Option 2W and Option 1 Combined”

The member may specify the same monthly allowance the member is receiving continue to be paid to his or her named beneficiary upon the member's death and that upon the subsequent death of the named beneficiary, any member contributions not used to fund the allowance be paid in a lump sum to a secondary beneficiary or beneficiaries.

(4) “Reduced Allowance for Fixed Period of Time”

The member may specify a percentage of his or her unmodified allowance to be received for a fixed period of time immediately following retirement. At the end of the specified period, the member begins to receive an increased allowance that is the actuarial equivalent of his or her remaining benefit. The allowance may be based on the member's life alone or on the joint lifetimes of the member and a named beneficiary.

(5) “Multiple Lifetime Beneficiaries”

The member may name more than one beneficiary to receive a lifetime monthly allowance following the death of the member after retirement.

(6) “Option 3W and Option 1 Combined”

The member may specify that one-half of the monthly allowance the member is receiving continue to be paid to his or her named beneficiary upon the member's death and that upon the subsequent death of the named beneficiary, any member contributions not used to fund the allowance be paid in a lump sum to a secondary beneficiary or beneficiaries.

(7) “Reduction upon Death of Retiree or Named Beneficiary”

The member may specify a minimal reduction of at least one dollar to the unmodified allowance to provide the highest allowance possible while both the member and beneficiary are living. Upon the death of either of them, the continuing allowance will be significantly reduced for the survivor.

NOTE

Authority cited: Sections 20121 and 21458, Government Code. Reference: Section 21458, Government Code.

HISTORY

1. New section filed 4-26-2004; operative 5-26-2004 (Register 2004, No. 18).

Article 7.5. Normal Retirement Age and Bona Fide Separation in Service

§586. Purpose.

Note • History

The purpose of this Article is to ensure the federal tax-qualified status of the Public Employees' Retirement System by prohibiting in-service distributions to the extent required by the Internal Revenue Code, and the regulations promulgated thereunder. In the event the applicable federal law changes, the federal law shall supercede these regulations.

NOTE

Authority cited: Sections 20121 and 21220.5, Government Code. Reference: Section 21220.5, Government Code.

HISTORY

1. New article 7.5 (sections 586-586.2) and section filed 8-20-2004; operative 9-19-2004 (Register 2004, No. 34).

§586.1. Normal Retirement Age.

Note • History

(a) The normal retirement age of a member shall be the later of:

(1) the age when the member is first eligible to retire pursuant to Article 1 through Article 5 of Chapter 12, Part 3, Division 5 of Title 2 of the Government Code; or

(2) the highest specified age applicable to the member in the benefit formula, where the highest specified age is defined as:

(A) 65 if the member is entitled to benefits under Government Code sections 20176 or 21100;

(B) 60 if the member is entitled to benefits under Government Code sections 21353 or 21354.3;

(C) 55 if the member is entitled to benefits under Government Code sections 21354, 21354.1, 21354.5, 21363, 21363.1, 21366, 21369, or 21369.1; and

(D) 50 if the member is entitled to benefits under Government Code sections 21362, 21362.2, 21363.3, 21363.4 or 21363.8.

(b) In the event an existing benefit formula is modified or a new benefit formula is enacted, the chief actuary may determine the normal retirement age until such time that the regulations may be amended.

NOTE

Authority cited: Sections 20121 and 21220.5, Government Code. Reference: Section 21220.5, Government Code.

HISTORY

1. New section filed 8-20-2004; operative 9-19-2004 (Register 2004, No. 34).

§586.2. Bona Fide Separation in Service.

Note • History

(a) For purposes of working for a CalPERS-covered employer after retirement pursuant to Article 8, of Chapter 12, Part 3, Division 5 of Title 2 of the Government Code, a member who has not attained normal retirement age shall have a bona fide separation in service. A bona fide separation in service is defined as:

(1) no predetermined agreement between the employer and the member prior to retirement to return to work for the employer after retirement; and

(2) a separation in service of at least 60 calendar days between the date of the member's retirement and the first day of work for the employer as a retired person. The 60 days shall commence on the day after retirement.

(b) Any retired person employed in violation of this regulation shall be subject to the consequences provided in Government Code section 21220.

(c) In the event an emergency has been declared as provided in Government Code Section 8558 that requires the employment of a retired person, the 60 calendar day separation in service requirement set forth in subdivision (a)(2) of this regulation shall not apply.

NOTE

Authority cited: Sections 20121 and 21220.5, Government Code. Reference: Section 21220.5, Government Code.

HISTORY

1. New section filed 8-20-2004; operative 9-19-2004 (Register 2004, No. 34).

Article 7.6. Participation in Risk Pools

§588. Risk Pools — Definitions.

Note • History

(a) For purposes of this Article, a “Rate Plan” consists of all CalPERS members for which a single employer contribution rate is produced annually.

(b) For purposes of this Article, a “Side Fund” shall be the difference between the actuarial value of assets and the actuarial liabilities of the rate plan at the time of joining a risk pool.

NOTE

Authority cited: Sections 20120, 20121 and 20840, Government Code. Reference: Section 20840, Government Code.

HISTORY

1. New article 7.6 (sections 588-588.10) and section filed 9-23-2004; operative 9-23-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 39).

§588.1. Risk Pools -- Required Participation for Existing Contracting Agencies; Effective Date for Mandated Benefits for New and Existing Contracting Agencies.

Note • History

Following the creation of risk pools pursuant to Section 20840 of the Government Code, any existing contracting agency with a rate plan of less than 100 active members on any annual actuarial valuation date shall be required to participate in a risk pool. Participation shall be effective as of that valuation date for all members of that rate plan, but no earlier than the June 30, 2003 actuarial valuation which will be used to set employer contribution rates for fiscal year 2005-2006. The effective date of a pool's mandated benefits pursuant to §20840 of the Government Code for contracting agencies who participate in a risk pool is the first day that the agency is required to pay for the mandated benefits.

NOTE

Authority cited: Sections 20120, 20121 and 20840, Government Code. Reference: Section 20840, Government Code.

HISTORY

1. New section filed 9-23-2004; operative 9-23-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 39).

2. Amendment of section heading and section filed 9-14-2009; operative 10-14-2009 (Register 2009, No. 38).

§588.2. Risk Pools -- Required Participation for New Contracting Agencies.

Note • History

A new contracting agency with CalPERS following the creation of risk pools shall be required to participate in a risk pool if the number of active members in the rate plan is less than 100 at the time of the initial actuarial valuation provided that the actuary determines such participation will not be unfavorable to other agencies in the pool. In the event that such participation would be unfavorable, the matter may be referred to the CalPERS Board for a hearing.

NOTE

Authority cited: Sections 20120, 20121 and 20840, Government Code. Reference: Section 20840, Government Code.

HISTORY

1. New section filed 9-23-2004; operative 9-23-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 39).

2. Amendment filed 9-14-2009; operative 10-14-2009 (Register 2009, No. 38).

§588.3. Risk Pools — Optional Participation.

Note • History

A contracting agency with 100 or more active members on each annual valuation date after June 30, 2003 may, by amendment to its contract, participate in a risk pool provided that the actuary determines such participation will not be unfavorable to other agencies in the pool. In the event that such participation would be unfavorable, the matter may be referred to the CalPERS Board for a hearing.

NOTE

Authority cited: Sections 20120, 20121 and 20840, Government Code. Reference: Section 20840, Government Code.

HISTORY

1. New section filed 9-23-2004; operative 9-23-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 39).

§588.4. Risk Pools — County Offices of Education, School Districts and Community College Districts.

Note • History

Notwithstanding Section 588.1, county offices of education, school districts and community college districts shall not be required to participate in a risk pool. County offices of education, school districts and community college districts shall only be allowed to establish a contract with CalPERS to participate in a risk pool if the service retirement formula of the risk pool provides higher factors at all ages than the service retirement formula applicable to school members.

NOTE

Authority cited: Sections 20120, 20121 and 20840, Government Code. Reference: Section 20840, Government Code.

HISTORY

1. New section filed 9-23-2004; operative 9-23-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 39).

§588.5. Risk Pools — Amortization of Side Funds.

Note • History

The side fund shall be amortized at the actuarially assumed investment return. All investment gains and losses on the side fund that exceed or fall below the actuarially assumed investment return shall be attributed to the risk pool.

NOTE

Authority cited: Sections 20120, 20121 and 20840, Government Code. Reference: Section 20840, Government Code.

HISTORY

1. New section filed 9-23-2004; operative 9-23-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 39).

§588.6. Risk Pools — Assignment to Risk Pools.

Note • History

A rate plan participating in a risk pool shall be assigned to one of the risk pools based on the service retirement formula applicable to its active members.

NOTE

Authority cited: Sections 20120, 20121 and 20840, Government Code. Reference: Section 20840, Government Code.

HISTORY

1. New section filed 9-23-2004; operative 9-23-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 39).

§588.7. Risk Pools — Leaving and Transferring Between Risk Pools.

Note • History

Any contracting agency participating in a risk pool shall be allowed to transfer the assets and actuarial liabilities of its rate plan into another risk pool by contracting for a service retirement formula offered by the other risk pool. For this purpose, the assets to be transferred shall be the pro-rata share of the current pool's net assets (net of all side funds) plus the rate plan's remaining side fund, as determined by the actuary. Following the transfer to the new pool, a new side fund shall be established equal to the difference between the assets brought into the new pool and the product of the actuarial liabilities of the rate plan under the new service retirement formula and the net funded ratio of the new pool as determined by the actuary. A contracting agency shall not be allowed to terminate its participation in a risk pool, unless the agency's contract is terminated pursuant to Sections 20570, 20571, or 20572 of the Government Code. Upon termination of the contract, the affected members shall become part of the terminated agency pool pursuant to Section 20578 of the Government Code.

NOTE

Authority cited: Sections 20120, 20121 and 20840, Government Code. Reference: Section 20840, Government Code.

HISTORY

1. New section filed 9-23-2004; operative 9-23-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 39).

§588.8. Risk Pools — Classification of Benefit Provisions.

Note • History

The CalPERS Board shall separate the benefit provisions available to a contracting agency into various classifications. These classifications will be handled as follows:

(a) Class 1 benefits may vary by rate plan within each risk pool. Agencies contracting for a Class 1 benefit will be responsible for the past service liability associated with such benefit and will be required to pay a surcharge established by the actuary to cover the ongoing cost (normal cost) of the Class 1 benefit. Class 1 benefits shall be the optional benefits meeting the following criteria:

(i) Impact the ongoing cost (either total or employer normal cost) of the risk pool by more than 0.25% of payroll; or

(ii) The benefit is not available to all plans participating in the risk pool.

(b) Class 2 benefits may vary by rate plan within each risk pool. Agencies contracting for a Class 2 benefit will be required to pay the full one time cost of the benefit, as established by the actuary. Class 2 benefits shall be the optional benefits, other than Class 1 benefits, meeting the following criteria:

(i) No impact on the ongoing cost (normal cost) of the risk pool; and

(ii) Provide a one time increase in benefit with an identifiable increase in accrued liabilities.

(c) Class 3 benefits may vary by rate plan within each risk pool. However, the employer contribution rate will not vary within the risk pool due to the Class 3 benefits. Class 3 benefits shall be the optional benefits meeting the following criteria:

(i) Impact the ongoing (normal cost) of the risk pool by no more than 0.25% of payroll

NOTE

Authority cited: Sections 20120, 20121 and 20840, Government Code. Reference: Section 20840, Government Code.

HISTORY

1. New section filed 9-23-2004; operative 9-23-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 39).

§588.9. Risk Pools — Merger of Risk Pools.

Note • History

In the event that the number of contracting agencies participating in a risk pool is determined by the actuary to be too small to reduce the volatility in employer contribution rates caused by unexpected demographic events, the risk pool will be merged with another risk pool identified by the actuary.

NOTE

Authority cited: Sections 20120, 20121 and 20840, Government Code. Reference: Section 20840, Government Code.

HISTORY

1. New section filed 9-23-2004; operative 9-23-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 39).

§588.10. Risk Pools — Superfunded Status.

Note • History

For employers participating in a risk pool, the actuary shall determine on an annual basis whether or not the employer's rate plan is superfunded pursuant to Section 20816 of the Government Code. In determining whether the rate plan is superfunded, the actuary shall use assets equal to the pro-rata share of the current pool's net assets plus the plan's remaining side fund. Superfunded plans may cover its employees' normal member contributions using its employer assets. Such transaction will be tracked through the rate plan's individual side fund.

NOTE

Authority cited: Sections 20120, 20121 and 20840, Government Code. Reference: Section 20840, Government Code.

HISTORY

1. New section filed 9-23-2004; operative 9-23-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 39).

Article 8. Replacement Benefits Plan

§589. Establishment and Status of Plan.

Note • History

(a) Establishment.

(1) There is hereby established and adopted a retirement plan entitled the California Public Employees' Retirement System Replacement Benefits Plan (the “Plan”) to restore the annual retirement benefits otherwise earned by Members of CalPERS but which are limited by the rules of Section 415 of the Internal Revenue Code of 1986, as amended (“Tax Code”). CalPERS is a tax qualified plan under Section 401(a) of the Tax Code and is a governmental plan as defined in Section 414(d) of the Tax Code.

(2) This Plan is established pursuant to the provisions of Section 401(m) of the Tax Code and Section 21757 of the Government Code. This Plan constitutes the regulations that implement Part 3.4 of the Government Code, as provided in Section 21760 thereof.

(3) The state, each school employer, and each contracting agency is deemed to have elected to contract with the Board of CalPERS for administration of this Plan, pursuant to Government Code Section 21761.

(b) Effective Date.

(1) This Plan shall be effective as of January 1, 1999, and benefits shall be payable from this Plan on and after that date.

(2) Benefits shall be paid to CalPERS Members with respect to periods beginning on and after the Effective Date for which their CalPERS benefits are limited by Section 415.

(3) In addition, benefits with respect to periods prior to the Effective Date and on and after January 1, 1993, shall be payable under this Plan as provided in Sections 589.2 and 589.3 below.

(c) “Portion of CalPERS” -- This Plan shall be deemed to be a “portion” of CalPERS and each retirement plan which exists as a part of CalPERS solely to the extent required by, and within the meaning of, Section 415(m)(3) as in effect on January 1, 2000, and not for any other purpose.

(d) Purpose and Tax Status of this Plan -- In accordance with Section 415(m), this Plan is solely for the purpose of providing to Members of CalPERS, and Other Recipients that part of the annual benefit otherwise earned under CalPERS that exceeds the limitations on benefits imposed by Section 415.

NOTE

Authority cited: Section 20120, 20121 and 21760, Government Code. Reference: Section 21757, Government Code.

HISTORY

1. New article 8 (sections 589-589.10) and section filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c). Submitted to OAL for printing only (Register 2001, No. 4).

2. Amendment of subsection (a)(3) filed 11-18-2002; operative 12-18-2002. Submitted to OAL for printing only pursuant to Government Code section 21760 (Register 2002, No. 47).

§589.1. Definitions.

Note • History

(a) Plan Definitions -- Terms used in this Plan shall have the meaning set out below:

(1) “Board” means the CalPERS Board of Administration.

(2) “CalPERS” means the California Public Employees' Retirement System.

(3) “Commencement Date” means the date of commencement of participation in this Plan as set out in Subsection 589.2(b) hereof.

(4) “Effective Date” means January 1, 1999.

(5) “Government Code” means the California Government Code.

(6) “HI Taxes” means federal hospital insurance taxes.

(7) “Member” means person who has qualified for membership in the California Public Employees Retirement System and on whose behalf an employer has become obligated to pay contributions to such System

(8) “OASDI” Taxes means federal old age, survivor and disability insurance taxes.

(9) “Other Recipient” means any recipient of benefits from CalPERS other than the Participant, such as a beneficiary, spouse, former spouse, eligible survivor, surviving parent, surviving child, or other recipient of benefits payable from CalPERS.

(10) “Participant” means a CalPERS Member who participates in this Plan pursuant to Section 589.2 hereof.

(11) “PERF” means the Public Employees' Retirement Fund as established under Government Code Section 20170.

(12) “Plan” means this California Public Employees' Retirement System Replacement Benefits Plan.

(13) “Plan Administrator” means the Board.

(14) “Plan Year” means the 12-month period beginning on July 1 and ending on June 30.

(15) “Replacement Benefit Custodial Fund” means the fund established pursuant to Government Code Section 21758, which is separate and apart from the PERF and any other CalPERS retirement trust fund and which is established to collect, hold and disburse funds to provide benefits under the Plan.

(16) “Recommencement Date” means the date of recommencement of participation in this Plan as set out in Subsection 589.2(d) hereof.

(17) “Section 415” means Section 415 of the Tax Code.

(18) “Tax Code” means the Internal Revenue Code of 1986, as amended, and any rules and regulations issued thereunder.

(b) Other Definitions -- Terms used but not defined herein which are used in and defined under the Government Code as that Code governs CalPERS shall be deemed to be a reference to the terms used in and defined in the Government Code, and shall be defined in exactly the same manner as they are defined therein unless otherwise specifically provided in this Plan.

NOTE

Authority cited: Section 20120, 20121 and 21760, Government Code. Reference: Section 21757, Government Code.

HISTORY

1. New section filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c). Submitted to OAL for printing only (Register 2001, No. 4).

§589.2. Participation.

Note • History

(a) CalPERS Members With Benefits Limited by Section 415 -- Participation in this Plan is limited solely to those CalPERS Members or Other Recipients whose benefits earned or payable under CalPERS are limited by Section 415 for periods on and after the Effective Date.

(b) Commencement of Participation -- Participation in this Plan shall commence on the first date (on or after the Effective Date) with respect to which benefits payable to the Member from CalPERS are limited by Section 415. This date is the Commencement Date.

(c) Cessation of Participation -- Participation in this Plan shall cease as of the first date for which benefits payable to the CalPERS Member or Other Recipient are no longer limited by Section 415.

(d) Re-commencement of Participation.

(1) If any Participant has ceased participation in this Plan but at a later date his or her CalPERS benefits payable are again limited by Section 415, he or she shall again commence participation as provided in Subsection 589.2(b) hereof and shall cease participation as provided in Subsection 589.2(c) hereof.

(2) If a Participant's CalPERS benefits stop, then he or she shall cease participation in this Plan and his or her benefits shall stop under this Plan. He or she shall again commence participation as provided in Subsection 589.2(b) hereof and shall cease participation as provided in Subsection 589.2(c) hereof.

(e) Other Recipients -- Any Other Recipient of benefits from CalPERS shall receive benefits under this Plan as of the first date (on or after the Effective Date) with respect to which benefits payable to him or her from CalPERS are limited by Section 415. The Other Recipient's benefits payable under this Plan shall cease as of the first date for which his or her CalPERS benefit is no longer limited by Section 415.

(f) Limited Retroactive Participation -- CalPERS Members or Other Recipients whose benefits payable under CalPERS were limited by Section 415 for periods beginning on and after January 1, 1993 and ending with the Effective Date, shall be Participants in this Plan solely for the purpose of paying to them benefits that were limited by Section 415 during that period and shall be Participants solely for the time period necessary or appropriate to complete such payment. This Participation may be in addition to the Participation otherwise provided for in this Section.

(g) No One Else Shall Receive Benefits -- No one other than a person described in this Section shall receive any benefits under this Plan, except as required by domestic relations orders or applicable law.

NOTE

Authority cited: Section 20120, 20121 and 21760, Government Code. Reference: Section 21757, Government Code.

HISTORY

1. New section filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c). Submitted to OAL for printing only (Register 2001, No. 4).

§589.3. Retirement Benefits.

Note • History

(a) Benefits Contingent on Funding -- No benefits shall accrue under this Plan to any Participant or Other Recipient unless and until the state, the school employer, or the contracting agency, as appropriate, has paid to CalPERS the amount that CalPERS has invoiced the state, school employer, contracting agency or Participant for the benefits payable, as provided in Sections 589.4 and 589.5 hereof.

(b) Amount of Benefit -- Initial Determination.

The benefit payable under this Plan shall be initially determined for each Participant at the Participant's Commencement Date under the following steps:

(1) Calculate the Participant's benefit payable under CalPERS at the time of the Commencement Date without regard to the limits of Section 415 and after taking into account the form of CalPERS benefit selected by the Participant.

(2) Determine the amount of the Participant's CalPERS benefits (if any) attributable to after tax Member contributions and attributable to rollover contributions at the Commencement Date after taking into account the form of CalPERS benefit selected by the Participant.

(3) Subtract the amount determined in (2) from the amount calculated under (1); this is the amount subject to the Section 415 limits and therefore subject to Section 415 testing.

(4) Determine the maximum benefits payable to the Participant from CalPERS under the then current benefit payment limits of Section 415, ignoring any benefits that may be attributable to after tax Member contributions or rollover Member contributions. This determination shall take into account the applicable dollar limits, and the form of benefit payment chosen. The limits may differ based on other factors such as whether the Participant qualifies for the special safety member limits under Section 415 and when he or she first became a CalPERS Member.

(5) Subtract the amount determined under (4) from the amount determined under (3). If the amount in (3) is greater than that in (4), the difference is the initial benefit payable under this Plan. If the amount in (4) is equal to or greater than the amount in (3), then no benefits are payable under this Plan.

(6) Section 415 establishes annual benefit limits and therefore, the amount of the initial benefit to be paid under this Plan that is determined under (4) is an annual benefit. For payment under this Plan, however, the amount of such initial benefit shall be converted to equal quarterly amounts.

(1) As of each January 1 following the Participant's Commencement Date or Recommencement Date (or the date of commencement or recommencement of benefits under this Plan for any Other Recipient), the Participant's, or Other Recipient's, benefit under this Plan shall be redetermined by following each of steps (1) through (6) of Subsection 589.3(b), but using the then current amounts determined by applying (i) cost of living adjustments and other changes (if any) to the benefits provided under CalPERS, and (ii) cost of living adjustments, and other changes (if any) to the maximum benefit limits established by Section 415.

(2) At the Plan Administrator's sole discretion, the amount of every Participant's and Other Recipient's benefits (on a uniform basis and not separately for any particular Participant or Other Recipient) may be redetermined at a date other than January 1 if there is a material change in the rules governing the maximum benefit limits established under Section 415 or a material change in CalPERS benefits, or for any other material reason at the Plan Administrator's sole discretion.

(d) Amount of Benefit -- Recommencement of Participation -- When a Participant or Other Recipient recommences participation in this Plan, a recalculation shall occur under Subsection 589.3(c) hereof, treating the first month for which benefits resume under this Plan as if it were a date of recalculation under Subsection 589.3(c). Any cost of living adjustments shall not apply to benefits payable under this section of the Plan until they otherwise would occur under the operation of this Plan and CalPERS.

(e) Amount of Benefit -- Other Recipients.

Other Recipients shall be entitled to benefits under this Plan as follows:

(1) Other Recipients shall be entitled to benefits under this Plan only if they are entitled to benefits that are limited by Section 415 under CalPERS after the death of a CalPERS Member or upon legal separation or dissolution of a marriage of a Member.

(2) The benefit payable to an Other Recipient under this Plan shall be determined as if he or she were the Participant, substituting in the calculations under Subsections 589.3(b) or 589.3(c), as applicable, the amounts due to such Other Recipient for the amounts due to the Participant.

(f) Timing of Payments.

(1) The amount of benefit provided under this Plan shall be paid quarterly starting as of the first day of the last month of the first calendar quarter following the Commencement Date. At the Plan Administrator's sole discretion, payments may be made from this Plan more or less frequently than quarterly, (and this may be done on an individual Participant basis), provided that payments to a Participant or Recipient shall be made at least annually.

(2) A pro rata amount, smaller than the quarterly payment, shall be paid for part of a quarter when the period of payment begins after the first day of the quarter or ends before the last day of the quarter.

(g) Form of Benefit Paid -- The benefit paid to a Participant or Other Recipient under this Plan shall be paid in the same form as benefits are paid to him or her under CalPERS, except that periodic benefits paid under this Plan shall be paid quarterly unless otherwise provided herein.

(h) Limited Retroactive Payments.

(1) The amounts that are payable to any Participant or Other Recipient covered by Subsection 589.2(f) above shall be determined as if the Effective Date for this Plan for the Participant or Other Recipient was the first date on and after January 1, 1993 on which benefits payable to him or her under CalPERS were limited by Section 415, and the last date for which benefits were so limited was December 31, 1998. All of the other provisions in this Section 589.3 (including but limited to Subsection 589.3(a)) shall apply to determine such payment, except as provided in this Subsection 589.3(h).

(2) Benefits payable under this Subsection 589.3(h) shall be paid as soon as reasonably practicable.

(3) Benefits payable under this Subsection 589.3(h) shall be paid, to the extent reasonably practicable, in a single sum.

(i) Determination Solely By Plan Administrator -- The Plan Administrator shall have sole authority and discretion to determine the amount of benefits (if any) that are payable under this Section 589.3.

NOTE

Authority cited: Section 20120, 20121 and 21760, Government Code. Reference: Section 21757, Government Code.

HISTORY

1. New section filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c). Submitted to OAL for printing only (Register 2001, No. 4).

2. Amendment of subsection (a) filed 11-18-2002; operative 12-18-2002. Submitted to OAL for printing only pursuant to Government Code section 21760 (Register 2002, No. 47).

§589.4. Funding.

Note • History

(a) Employer Contributions Required -- The state, each applicable school employer, and each applicable contracting agency shall make contributions to this Plan in amounts to be fixed and determined by the Board. The Board shall have sole authority and discretion to determine the amount of contributions that must be paid to this Plan by the state, each applicable school employer, and each applicable contracting agency. The Board shall make such determination after receiving advice on such contributions from the Chief Actuary of CalPERS.

(b) Employer Contribution Amount.

(1) The amount of each employer's contributions to this Plan shall be equal to the amount of estimated benefits payable from this Plan for the applicable calendar year for applicable Participants and/or Other Recipients.

(2) The Board may require payment of additional contributions or other amounts owed to this Plan from one or more applicable employers during the applicable calendar year as is necessary to provide benefits under this Plan.

(c) Time and Manner of Employer Contributions -- Employer contributions shall be made at the time and in the manner as is fixed by the Board.

(d) Excess Amounts -- If, at the end of any calendar year, assets are held in the Replacement Benefit Custodial Fund that are in excess of what was required during the calendar year to pay benefits under the Plan, such excess shall be used only to pay Plan expenses.

(e) Source of Contributions -- To the extent practicable and subject to the approval of the CalPERS Chief Actuary, contributions to this Plan shall be made from amounts that otherwise would have been contributed by the employer to CalPERS. Such contributions shall be deposited in the Replacement Benefit Custodial Fund. Under no circumstances shall any amount be transferred from the PERF to or for the use of this Plan.

(f) Invoice for Contributions.

(1) The Plan Administrator shall invoice each applicable contributing employer no later than the fifteenth day of January of each year.

(2) In addition, the Plan Administrator shall invoice each applicable contributing employer under this Plan as soon as is reasonably practicable in order to obtain the funds needed to pay benefits under this Plan for Members who become Participants after the beginning of the calendar year, and for other appropriate circumstances.

(3) The employer shall promptly pay to CalPERS the amount invoiced.

(4) No benefits shall accrue or be payable to any person under this Plan unless and until payment of the amount invoiced for such person is made by the applicable contributing employer.

(g) Replacement Benefit Custodial Fund.

(1) All contributions under this Plan shall be deposited in the Replacement Benefit Custodial Fund.

(2) The Plan Administrator shall establish, within the Replacement Benefit Custodial Fund, an individual account for each Participant or Other Recipient to hold contributions with respect to her or her benefit under this Plan, pursuant to Section 21758(e) of the Government Code. All benefits paid to such Participant and Other Recipient shall be paid from such accounts.

NOTE

Authority cited: Sections 20120, 20121 and 21760, Government Code. Reference: Section 21757, Government Code.

HISTORY

1. New section filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c). Submitted to OAL for printing only (Register 2001, No. 4).

2. Amendment of subsection (a) filed 11-18-2002; operative 12-18-2002. Submitted to OAL for printing only pursuant to Government Code section 21760 (Register 2002, No. 47).

§589.5. Taxes.

Note • History

(a) Tax Withholding -- The Plan Administrator shall have full authority to determine and withhold any and all taxes that are or may be due from all amounts contributed or paid under the Plan (including but not limited to income and payroll taxes), to pay them to the appropriate government agency, and to file and distribute necessary or appropriate tax reports and forms.

(b) Agent for Paying Taxes -- The state, each affected school employer, and each affected contracting agency hereby designate the Plan Administrator as its agent for purposes of paying taxes and filing such forms and returns as are required by the Internal Revenue Service and any other tax agency with respect to benefits paid from this plan. The state, each affected school employer, and each affected contracting agency shall execute and file such forms and other documents as are deemed necessary or appropriate by the Plan Administrator in connection with this designation.

(1) The state, applicable school employers, applicable contracting agencies, Participants and Other Recipients shall promptly pay to the Plan Administrator amounts equal to such OASDI and HI Taxes that the Plan Administrator determines are due from them with respect to benefits paid from this Plan. Amounts paid under this Subsection 589.5(c)(1) shall be held in a special tax escrow account until paid and shall not be held in the Replacement Benefit Custodial Fund.

(2) The Plan Administrator shall determine the amount of OASDI and HI taxes due with respect to any Participant or Other Recipient pursuant to applicable Treasury Regulations, and shall do the following:

(A) invoice the state, the school employer, or contracting agency, as appropriate, for the full amount of the employer taxes due on benefits payable with respect to applicable Participants and Other Recipients from this Plan,

(B) collect the employer OASDI and HI Taxes due from such employer prior to the payment of any benefits under this Plan to the Participant or Other Recipient,

C) collect the employee taxes due from the Participant or Other Recipient from benefits payable from this Plan prior to payment of any such benefits, and

(D) as agent of the state, school employer, or contracting agency, pay such taxes and file such forms and returns as directed by the Internal Revenue Service.

NOTE

Authority cited: Sections 20120, 20121 and 21760, Government Code. Reference: Section 21757, Government Code.

HISTORY

1. New section filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c). Submitted to OAL for printing only (Register 2001, No. 4).

2. Amendment of subsections (b), (c)(1), (c)(2)(A) and (c)(2)(D) filed 11-18-2002; operative 12-18-2002. Submitted to OAL for printing only pursuant to Government Code section 21760 (Register 2002, No. 47).

§589.6. Exemption from Process; Assignments Prohibited.

Note • History

(a) Benefit Not Subject to Execution, Process or Assignment -- The right of a person to any benefit or other right under this Plan and any money that is set aside to pay such benefits are not subject to execution or any process whatsoever except to the extent permitted by Section 704.110 of the Code of Civil Procedure, and are unassignable, except as specifically provided in this Plan.

(b) Marital Dissolution or Legal Separation.

(1) The provisions of Subsection 589.6(a) will not apply in the case of any property settlements upon marital dissolution or legal separation which are made in accordance with a domestic relations order (DRO) issued in accordance with state domestic relations law.

(2) If the community property is divided upon the marital dissolution or legal separation of a Member, then the provisions of Sections 21290 through 21298 of the Government Code shall apply to this Plan in the same manner as they apply to CalPERS.

NOTE

Authority cited: Sections 20120, 20121 and 21760, Government Code. Reference: Section 21757, Government Code.

HISTORY

1. New section filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c). Submitted to OAL for printing only (Register 2001, No. 4).

§589.7. Administration.

Note • History

(a) Administration by the Board.

(1) The management and control of this Plan is vested in the Board.

(2) This Plan shall be administered by the Board in conformity with its powers and duties set forth in the Government Code commencing with Section 20000, including but not limited to all powers and duties set forth in Chapter 2 of Part 3 of the Government Code.

(3) For determining the administrative powers and responsibilities of the Board, the term “Replacement Benefit Custodial Fund” shall replace reference to the “Public Employees' Retirement Fund” in Article 5 of Chapter 2 of Part 3 of the Government Code. The Board has the exclusive control of the administration and investment of the Replacement Benefit Custodial Fund.

(b) Costs of Administration.

(1) The administrative costs of this Plan shall be paid from (i) earnings on assets of the Replacement Benefit Custodial Fund, (ii) funds credited to accounts of Participants or Other Recipients under this Plan, (iii) forfeitures of amounts that have been credited to such accounts but which are not paid because of death of the Participant or Other Recipient, and (iv) amounts described in Subsection 589.4(d) above.

(2) Administrative costs of this Plan shall not be paid from the PERF.

NOTE

Authority cited: Sections 20120, 20121 and 21760, Government Code. Reference: Section 21757, Government Code.

HISTORY

1. New section filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c). Submitted to OAL for printing only (Register 2001, No. 4).

§589.8. Source of Benefits.

Note • History

(a) Replacement Benefit Custodial Fund -- All benefits payable under this Plan shall be paid solely from the Replacement Benefits Custodial Fund.

(b) No Employee Deferrals -- No employee contributions or deferrals shall be made or allowed under the Plan at any time. In accordance with Section 415(m), no election to defer compensation under this Plan shall be provided, at any time or in any manner, to any person.

(c) No Use of CalPERS Assets -- Except as specifically allowed by governing federal and state law (including but not limited to governing federal and state tax laws), assets used to provide benefits under this Plan shall not be commingled with the monies of the PERF or any other CalPERS retirement trust fund or any other qualified plans, nor shall this Plan ever receive or use any assets of the PERF.

NOTE

Authority cited: Sections 20120, 20121 and 21760, Government Code. Reference: Section 21757, Government Code.

HISTORY

1. New section filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c). Submitted to OAL for printing only (Register 2001, No. 4).

§589.9. Miscellaneous.

Note • History

(a) Applicable Law -- This Plan shall be governed by the laws of the State of California and applicable federal law.

(b) No Employment Rights -- Nothing in this Plan shall be construed as giving to a Participant any right to be retained in the employment of the state, the school employer, or any contracting agency.

(c) Unclaimed Benefits and Accumulations -- In any situation where benefits are payable under this Plan, a reasonable search, including mailing of a registered letter to the last known address, shall be made to ascertain the whereabouts of the eligible Participant or other Recipient.

If the person or persons entitled thereafter come forward and request payment and establish such entitlement, the amounts then due, including retroactive payments from the Commencement Date, shall be paid accordingly.

(d) Benefit Limits -- Nothing in this Plan shall be construed as creating an entitlement to any benefits greater than what is otherwise provided under the sections of the Government Code that govern the benefits provided by CalPERS determined without regard to the limits of Section 415.

NOTE

Authority cited: Sections 20120, 20121 and 21760, Government Code. Reference: Section 21757, Government Code.

HISTORY

1. New section filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c). Submitted to OAL for printing only (Register 2001, No. 4).

2. Amendment of subsection (b) filed 11-18-2002; operative 12-18-2002. Submitted to OAL for printing only pursuant to Government Code section 21760 (Register 2002, No. 47).

§589.10. Amendment or Termination of Plan.

Note • History

(a) Right to Amend Plan -- Notwithstanding any other provision of this Plan, the Board has the right to amend this Plan at any time and at any manner for any reason whatsoever. This right to amend includes, but is not limited to, the right to amend the Plan to reduce or eliminate any or all benefits under the Plan for any or all persons who may be Participants and/or Other Recipients or otherwise may be entitled to benefits under the Plan. Benefits may be reduced or eliminated for any or all persons (including Participants and/or other Recipients) even if they are then entitled to or are receiving benefits under the Plan.

(b) Right to Terminate Plan -- Notwithstanding any other provision of this Plan, the Board has the right to terminate this Plan at any time and for any reason whatsoever. This right to terminate the Plan includes, but is not limited to, the right to terminate any or all benefits under the Plan for any or all persons who may be Participants and/or Other Recipients or otherwise may be entitled to benefits under the Plan. Benefits may be terminated for any or all persons (including Participants and/or other Recipients) even if they are then entitled to or are receiving benefits under the Plan.

(c) Vested Rights -- Nothing in this Section 589.10 shall be construed as affecting any vested rights that a Participant or Other Recipient may otherwise have under California law.

(d) Preservation of Tax Status -- This Plan shall not in any way jeopardize the tax qualified status of CalPERS. To maintain this qualified status, the Board shall take all necessary or appropriate action, including but not limited to amending this Plan and any rules governing this Plan, solely for the purpose of complying with applicable federal tax laws and regulations.

NOTE

Authority cited: Sections 20120, 20121 and 21760, Government Code. Reference: Section 21757, Government Code.

HISTORY

1. New section filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c). Submitted to OAL for printing only (Register 2001, No. 4).

Article 8.1. Terminated Agency Pool Asset Allocation Strategy

§589.11. Terminated Agency Pool -- Investment Earnings Allocation.

Note • History

Assets pooled in the Terminated Agency Pool shall be invested in accordance with the strategic investment policy and/or asset allocation strategy determined by the board for such pooled assets and the Terminated Agency Pool will be credited with income and interest earned on those assets in accordance with such policy and/or strategy.

NOTE

Authority cited: Section 20121, Government Code. Reference: Sections 20174 and 20576, Government Code.

HISTORY

1. New article 8.1 (section 589.11) and section filed 3-6-2012; operative 4-5-2012 (Register 2012, No. 10).

Subchapter 2. Social Security (OASDHI) Regulations

Article 1. General

§590. Location of Offices.

Note • History

NOTE

Authority cited for Subchapter 2 (§§ 590 through 598.1, 599 and 599.1): Section 22500, Government Code.

HISTORY

1. New Subchapter 2 (§§ 590 through 598.1, 599 and 599.1) filed 7-6-55, as an emergency; effective upon filing (Register 55, No. 10). (For former Sections 590 through 599, designated as Chapter 3, issued by Director of Finance, see Register 55, No. 6. Repealer filed 7-22-55 as an emergency; effective upon filing.)

2. Amendment filed 4-23-57 as an emergency; effective upon filing (Register 57, No. 7).

3. Amendment filed 12-9-64; effective thirtieth day thereafter (Register 64, No. 24).

4. Amendment filed 4-9-68; effective thirtieth day thereafter (Register 68, No. 15).

5. Change without regulatory effect filed 4-18-88; operative 5-18-88 (Register 88, No. 18).

§591. Definitions.

Note • History

For the purpose of the regulations contained in this chapter, the term “board” means the Board of Administration of the Public Employees' Retirement System; the term “code” means the California Administrative Code; the term “register” means the California Administrative Register; the term “supervisor” means the agency or individual designated by the Governor to supervise the conduct of divisions and referendums as provided by Part 4, Division 5 of Title 2 of the Government Code; the term “member” with respect to any retirement system shall include in addition to members of the system any nonmember in a position in which he may elect membership for purposes of division of the system; and the term “federal system” means the Old-Age, Survivors, Disability, and Health Insurance provisions of the Social Security Act.

NOTE

Additional authority cited: Section 22151, Government Code.

HISTORY

1. Amendment filed 6-22-59 as an emergency; effective upon filing (Register 59, No. 10).

2. Certificate of Compliance--Section 11422.1, Government Code; filed 8-20-59 (Register 59, No. 14).

3. Amendment filed 4-9-68; effective thirtieth day thereafter (Register 68, No. 15).

§592. Tenses, Gender and Number.

For the purpose of the regulations contained in this chapter, the present tense includes the past and future tenses, and the future the present; the masculine gender includes the feminine, and the feminine, the masculine; and the singular includes the plural, and the plural, the singular.

Article 2. Referendum Procedures for Local Public Agencies

§593. Adoption of Resolution.

Note • History

Any public agency, as defined in Sections 22009, et seq., of the Government Code, except the State, desiring to hold a referendum, shall first adopt a resolution or ordinance to do so. Such resolution or ordinance shall specify who are the employees eligible to vote in such referendum, and shall designate by name and title the individual who will conduct the referendum. Such resolution or ordinance shall establish the effective date upon and after which services performed for such public agency shall be covered under the agreement under the provisions of Section 218 of the Social Security Act. Such resolution or ordinance shall include a request to the board for authorization to hold such referendum.

NOTE

Authority cited: Section 20121, Government Code. Reference: Section 22300, Government Code.

HISTORY

1. Amendment filed 12-9-64; effective thirtieth day thereafter (Register 64, No. 24).

2. Amendment filed 4-9-68; effective thirtieth day thereafter (Register 68, No. 15).

3. Amendment filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32).

4. Change without regulatory effect amending Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).

§594. Date of Referendum.

Upon receipt of the board's authorization to hold a referendum, the public agency shall set a date upon which its eligible employees shall vote in such referendum. This date may be set by the individual who will conduct the referendum, on behalf of such public agency.

§595. Submission of Proposed Notice and Procedure.

The public agency shall prepare a notice of referendum, specifying, among other matters, the time and place for voting. Such notice, together with a proposed plan of procedure in the conduct of such referendum, shall be submitted to the supervisor for approval.

§596. Notice of Referendum.

After approval by the supervisor of the notice and plan of referendum, the public agency shall give such notice to all employees eligible to vote in the referendum. Notice of referendum shall be given by either personal service or first class mail, and in addition thereto, by posting such notice on all bulletin boards maintained by such agency to give notices to employees.

§597. Referendum Ballots.

Ballots shall be furnished to all employees eligible to vote in such referendum, and only to such employees. The ballots so furnished shall contain a statement of the question to be voted upon in the referendum. Such question shall be in the words and figures contained in the notice of referendum hereinabove mentioned. Provision shall be made for an indication by the voter of a vote in either the affirmative or negative. The ballots shall be counted by or under the supervision of the individual who conducts the referendum.

§598. Certification of Referendum.

Note • History

(a) Upon completion thereof, the individual who conducts the referendum shall, if such be the facts, certify to the supervisor that:

(1) A referendum by secret written ballot was held on question of whether service in positions covered by the retirement system of the public agency should be excluded from or included under the agreement under the provisions of Section 218 of Title II of the Social Security Act;

(2) An opportunity to vote in such referendum was given (and was limited) to eligible employees;

(3) Not less than 90 days' notice of such referendum was given to all such employees;

(4) Such referendum was conducted by him;

(5) A majority of the eligible employees voted in favor of including service in such positions under an agreement under said Section 218;

(6) That with respect to such referendum the conditions specified in Section 218(d) of the Social Security Act have been met, and that the protection afforded employees in positions covered by the retirement system as to which such referendum has been had, as well as those receiving periodic benefits under such retirement system, will not be impaired as a result of making an agreement, bringing such employees under social security in accordance with the declared policy of the Congress set forth in Section 218(d) of the Social Security Act.

(b) Accompanying such certification, the individual who conducted the referendum shall forward to the supervisor:

(1) His affidavit of service and posting of the notice of referendum;

(2) A certified copy of the notice of referendum;

(3) All ballots cast in the referendum.

(c) Certification to Governor. The supervisor shall thereupon certify to the Governor or such other state official designated by the Governor that such referendum has been conducted and completed in full accordance with law and these regulations.

(d) Destruction of Referendum Ballots. The ballots cast in the referendum shall be forwarded by the supervisor to the office of the board, where such ballots shall be retained for a period of 30 days following acceptance by the Department of Health and Human Services of the modification including in coverage under the federal-state agreement the retirement system coverage group with respect to which the referendum was held. At the expiration of the said 30-day period, the ballots shall be destroyed.

NOTE

Authority cited: Section 22500, Government Code. Reference: Section 22300, Government Code.

HISTORY

1. New subsection (d) filed 6-29-60; effective thirtieth day thereafter (Register 60, No. 15).

2. Amendment filed 7-18-61 as an emergency; effective on filing (Register 61, No. 14).

3. Certificate of Compliance--Sec. 11422.1, Gov. Code, filed 10-17-61 (Register 61, No. 21).

4. Amendment of subsection (d) filed 2-11-81; effective thirtieth day thereafter (Register 81, No. 7).

§598.1. Ratification.

All action taken by any public agency in accordance with law and these regulations, but taken before the formal adoption hereof, is hereby ratified, approved and confirmed.

§598.50. Authorization for Division; Supervision by Referendum Supervisor. [Repealed]

Note • History

NOTE

Authority cited for Article 2.5: Sections 22151 and 22500, Government Code.

HISTORY

1. New Article 2.5 ( §§ 598.50 through 598.54) filed 10-14-57; effective thirtieth day thereafter (Register 57, No. 18).

2. Repealer of Article 2.5 ( §§ 598.50 through 598.54) filed 7-18-61 as an emergency; effective upon filing (Register 61, No. 14).

3. Certificate of Compliance--Sec. 11422.1, Gov. Code, filed 10-17-61 (Register 61, No. 21).

Article 3. Division of Retirement Systems

§598.60. Authorization for Division.

Note • History

The governing body of any public agency, as defined in Sections 22009, et seq., of the Government Code, except the State, may divide a retirement system established by it into two parts in accordance with these rules, one part composed of positions of members of such system who desire coverage under the Federal System, and the other composed of positions of members who do not desire such coverage.

NOTE

Authority cited for new Article 3 (Sections 598.60 through 598.69, inclusive): Section 20121, Government Code. Reference: Section 22150, Government Code.

HISTORY

1. New Article 3 (Sections 598.60 through 598.69) filed 6-22-59 as an emergency; effective upon filing (Register 59, No. 10).

. (For former Article 3 (Sections 599 through 599.3), see Registers 55, No. 16, and 57, No. 18. Repealer filed 6-22-59 as an emergency; designated effective on filing.)

2. Certificate of Compliance--Section 11422.1, Government Code; filed 8-20-59 (Register 59, No. 14).

3. Amendment filed 4-9-68; effective thirtieth day thereafter (Register 68, No. 15).

4. Amendment filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32).

5. Change without regulatory effect amending Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).

§598.61. Division Election. [Repealed]

History

HISTORY

1. Repealer filed 6-26-63 as an emergency; effective upon filing (Register 63, No. 11).

2. Certificate of Compliance--Section 11422.1, Government Code, filed 8-21-63 (Register 63, No. 14).

§598.62. Resolution Requesting Division.

Note • History

Authorization shall be requested by a resolution adopted by the governing body or such other officer or body as may be authorized or directed by law to divide the system. The resolution shall include: (1) a designation of the members, if any, who are excluded from participation in the division; (2) a designation by name and title of the local division officer who will conduct the division; and (3) the effective date on and after which services of members will be included in the federal system. The resolution shall provide for reimbursement of estimated costs incurred by the State in connection with the division and shall fix the date for the division or authorize the local division officer to fix such date. Two copies of the resolution properly certified shall be filed with the board.

NOTE

Additional authority cited: Section 22150, Government Code.

HISTORY

1. Amendment filed 6-26-63 as an emergency; effective upon filing (Register 63, No. 11).

2. Certificate of Compliance--Section 11422.1, Government Code, filed 8-21-63 (Register 63, No. 14).

§598.63. Executive Officer's Authorization.

Note • History

The Executive Officer, upon the filing of a resolution complying with these regulations, shall authorize a division of the retirement system and shall designate the State division supervisor to supervise the conduct of the division.

NOTE

Additional authority cited: Section 22150, Government Code.

HISTORY

1. Amendment filed 6-26-63 as an emergency; effective upon filing (Register 63, No. 11).

2. Certificate of Compliance--Section 11422.1, Government Code, filed 8-21-63 (Register 63, No. 14).

§598.64. Notice of Division.

The local division officer shall, upon issuance of the authorization, prepare a notice of the division which shall contain among other matters the date of the division and an explanation of the modification if any to be made in the retirement system as it applies to public agency employees. He shall submit such notice together with the proposed plan of procedure to the state division supervisor for approval. The approved notice shall be given not less than 90 days prior to the date set for the division to all persons who are eligible members of the system. Such notice shall also be given to each person who becomes an eligible member after the notice date to and including the date fixed for the division. Notice shall be given by personal delivery or by first-class mail and must be posted on all bulletin boards maintained by the agency to give notices to employees.

§598.65. Division Election Form.

History

Each member of the retirement system on the division date shall be supplied with a division election form devised or approved by the executive officer, Public Employees' Retirement System, containing provisions for an election by the member whether he desires to be or not to be included in the part of the system to be covered under the Federal System. If supplied by mail, the form shall be sent by first-class mail. Failure to execute and return a form indicating an election to be included in that part of the system to be covered under the federal system on the division date or within 10 days or such longer period thereafter as may be prescribed by the executive officer, shall be deemed an election not to be included in such part, unless the board finds that the failure was due to circumstances beyond the control of the member.

HISTORY

1. Amendment filed 4-9-68; effective thirtieth day thereafter (Register 68, No. 15).

2. Amendment filed 11-21-75 as an emergency; effective upon filing (Register 75, No. 47).

3. Certificate of Compliance filed 3-2-76 (Register 76, No. 10).

§598.66. Certificate of Conduct of Division.

Upon completion of division procedures in compliance with these rules, the local division officer shall so certify to the state division supervisor. He shall forward to the supervisor a certified list of the members eligible to participate in the division and all election forms properly executed and returned by eligible members in the division.

§598.67. Division Supervisor's Certificate.

Note • History

The supervisor of the division, upon receipt thereof and upon finding that the division was conducted in compliance with applicable law and these rules, shall approve the list and election forms and file the same in the office of the board where they shall be maintained as a permanent record. He shall thereupon certify to the Governor or to any such other State official designated by the Governor to make the certification required in Section 218(d)(6) of the Federal Social Security Act with respect to the division that:

(a) An opportunity to vote by written ballot on the question whether they wish to be covered under the federal system was given to all individuals who were members of the system at the time the vote was held.

(b) Not less than 90 days' notice was given to all individuals who were members of such system on the date the notice was issued.

(d) All written election forms returned and approved by the supervisor, together with a list of the members eligible to participate in the division, have been filed in the office of the board.

NOTE

Additional authority cited: Section 22150, Government Code.

HISTORY

1. Amendment filed 6-26-63 as an emergency; effective upon filing (Register 63, No. 11).

2. Certificate of Compliance--Section 11422.1, Government Code, filed 8-21-63 (Register 63, No. 14).

§598.68. Application and Agreement.

When the division supervisor's certificates have been filed, the governing body of the public agency may submit an application and agreement to the board for coverage under the federal system of the members of the system established by these procedures composed of the members electing such coverage.

§598.69. Application of Article. [Repealed]

History

HISTORY

1. Repealer filed 6-26-63 as an emergency; effective upon filing (Register 63, No. 11).

2. Certificate of Compliance--Section 11422.1, Government Code, filed 8-21-63 (Register 63, No. 14).

§598.75. Authorization for Division. [Repealed]

Note • History

NOTE

Authority cited for Article 4: Sections 22151 and 22500, Government Code.

HISTORY

1. Repealer of Article 4 (Sections 598.75 through 598.80) filed 12-9-64; effective thirtieth day thereafter (Register 64, No. 24). For prior history, see Register 61, No. 21.

§598.81. Authorization for Division. [Repealed]

Note • History

NOTE

Authority cited for Article 4.5 (Sections 598.81 through 598.86), Sections 22151, 22156, 22500, Government Code. Additional authority cited: Section 20120, Government Code.

HISTORY

1. New Article 4.5 (Sections 598.81 through 598.86) filed 1-4-72 as an emergency; effective upon filing (Register 72, No. 2).

2. Certificate of Compliance filed 5-2-72 (Register 72, No. 19).

3. Repealer of Article 4.5 (Sections 598.81 through 598.86) filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32).

§598.90. Resolution of Intention. [Repealed]

Note • History

NOTE

Authority cited for new Article 5 (Sections 598.90 through 598.93): Sections 22151 and 22500, Government Code.

HISTORY

1. New Article 5 (Sections 598.90 through 598.93) filed 7-30-59 as an emergency; effective upon filing (Register 59, No. 13). Certificate of Compliance filed 8-20-59.

2. Repealer of Article 5 (§§ 598.90-598.93) filed 7-18-61 as an emergency; effective on filing (Register 61, No. 14).

3. Certificate of Compliance--Sec. 11422.1, Gov. Code, filed 10-17-61 (Register 61, No. 21).

Article 6. Transfer of Members of Divided System

§599. Authorization for Transfer.

Note • History

Any public agency which has divided a retirement system may request a transfer of members from the system composed of positions of members not desiring coverage under the federal system to the system composed of members desiring such coverage pursuant to this article. Such request must include both the members of the system who elected not to be covered and those nonmembers having an option to be members, who either elected not to be covered or who had no right of election under the law at the time of the division.

NOTE

Authority cited for Article 6 (Sections 599 through 599.5), Sections 22155 and 22500, Government Code.

HISTORY

1. New Article 6 (Sections 599 through 599.5) filed 8-19-59 as an emergency; effective upon filing (Register 59, No. 14).

2. Certificate of Compliance--Section 11422.1, Gov. Code, for Article 6 (Sections 599 through 599.5) filed 10-13-59 (Register 59, No. 18).

3. Amendment filed 2-14-62; effective thirtieth day thereafter (Register 62, No. 3).

4. Change without regulatory effect amending Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).

§599.1. Resolution Requesting Transfer--Contents.

The governing body of the public agency shall adopt and file with the board a resolution requesting the Board of Administration to execute a modification to the federal-state agreement to accomplish such transfer. The resolution shall specify a date before which members desiring to transfer must file their written requests with the State.

§599.2. Resolution Requesting Transfer--Time for Filing.

History

The resolution of the governing body must be filed before the first day of the twenty-fourth month following the execution by the appropriate federal official of the modification including the employees of the agency in the Federal System, or December 1, 1969, whichever is later, and may not specify a date for filing requests earlier than 60 days following execution of such modification, or 15 days following the filing of the resolution, whichever is later.

HISTORY

1. Amendment filed 10-17-61; effective thirtieth day thereafter (Register 61, No. 21).

2. Amendment filed 9-8-65 as an emergency; effective upon filing (Register 65, No. 17).

3. Certificate of Compliance--Sec. 11422.1, Gov. Code, filed 10-22-65 (Register 65, No. 20).

4. Amendment filed 4-9-68; effective thirtieth day thereafter (Register 68, No. 15).

§599.3. Notice of Right to Transfer.

The governing body shall give or cause to be given, on or before the filing of the resolution, notice to eligible members of the right to request a transfer and of the date by which such requests must be filed in the office of the board and shall make available to such members forms devised or approved by the executive officer upon which such requests may be filed.

§599.4. Member Request for Transfer.

Any member of the part of a divided retirement system composed of positions of members not desiring coverage with respect to which a resolution has been filed in accordance with this article may file a written request with the Board of Administration that his position be transferred to the part of the system composed of members desiring coverage. Such request shall be on a form devised for the purpose and approved by the executive officer; provided, however, that the executive officer shall accept the filing of any writing signed by the member which clearly states his intention to transfer. A member's request for transfer must be received in the office of the board on or before the date specified in the resolution for such filing. Requests duly filed with the board shall be maintained as a permanent record. The executive officer shall provide the agency with the names of the persons requesting transfer.

§599.5. Modification Providing for Transfer.

Note • History

Upon the filing of a resolution in accordance with this article and expiration of the period for filing of member requests, as fixed by the resolution, the executive officer or, in his absence, the assistant executive officer, shall execute on behalf of the board and deliver to the Secretary of Health and Human Services, a modification to the agreement to include members so requesting in the federal system.

NOTE

Authority cited: Section 22500, Government Code. Reference: Section 22155, Government Code.

HISTORY

1. Amendment filed 2-11-81; effective thirtieth day thereafter (Register 81, No. 7).

§599.6. Transfer of School Members. [Repealed]

History

HISTORY

1. New section filed 7-18-61 as an emergency; effective on filing (Register 61, No. 14).

2. Certificate of Compliance--Sec. 11422.1, Gov. Code, filed 10-17-61 (Register 61, No. 21).

3. Amendment filed 8-16-66 as an emergency; effective upon filing (Register 66, No. 27).

4. Certificate of Compliance--Section 11422.1, Government Code, filed 10-26-66 (Register 66, No. 37).

5. Repealer filed 4-9-68; effective thirtieth day thereafter (Register 68, No. 15).

§599.7. Transfer of State Members. [Repealed]

History

HISTORY

1. New section filed 9-8-65 as an emergency; effective upon filing (Register 65, No. 17).

2. Certificate of Compliance--Sec. 11422.1, Gov. Code, filed 10-22-65 (Register 65, No. 20).

3. Repealer filed 4-9-68; effective thirtieth day thereafter (Register 68, No. 15).

Article 7. Termination Procedures for Local Public Agencies [Repealed]

HISTORY

1. Change without regulatory effect repealing article 7 (sections 599.50-599.55) pursuant to section 100, title 1, California Code of Regulations (Register 86, No. 52). For prior history, see Register 76, No. 32; Register 78, No. 21; and Register 81, No. 7.

Subchapter 3. Public Employees' Medical and Hospital Care Act Regulations

Article 1. Definitions, Coverage, Enrollment, Conversion, Minimum Standards, Alternative Benefit Plans, Contributions, Contingency Reserve Fund, Contracting Agency Participation and Medicare Part B

§599.500. Definitions.

Note • History

For the purposes of this subchapter:

(a) Terms used in this subchapter that are defined by the Public Employees' Medical and Hospital Care Act (Title 2, Division 5, Part 5 (commencing with Section 22750) of the Government Code) shall have the meanings therein set forth.

(b) “Employing office” means any office of the state or contracting agency to which jurisdiction and responsibility for health benefits action for the employee concerned have been delegated. For annuitants, whether or not the annuitant is also an employee, the Health Benefits Division of the Public Employees' Retirement System is the employing office.

(c) “Payroll office” means either the office of the State Controller for agencies participating under the Uniform Payroll System, or the employing office for agencies not participating under the Uniform Payroll System, irrespective of whether or not salary warrants are issued by the State Controller.

(d) “Time.” Whenever in this subchapter a time is stated in which an act is to be done, the time is computed by excluding the first day and including the last day. If the last day is a holiday, it is also excluded.

(e) “Annuity period” means the period for which a single installment of a retirement allowance or annuity is customarily paid for annuitants.

(f) “Enroll” means to file with the employing office a properly completed Health Benefits Plan Enrollment Form electing to be enrolled in a health benefits plan.

(g) “Enrolled” means to be enrolled in a health benefits plan approved by the Board under this subchapter.

(h) “Register not to enroll” means to file with the employing office a properly completed Health Benefits Plan Enrollment Form electing not to be enrolled in a health benefits plan.

(i) “Cancellation” is the act, by an enrolled employee or annuitant who is eligible to continue enrollment, of filing a Health Benefits Plan Enrollment Form, terminating enrollment in a health benefits plan.

(j) “Administrative action” is the completion or approval, by the Health Benefits Division, of a Health Benefits Plan Enrollment Form terminating or changing the enrollment of an employee, annuitant, or family member in accordance with the provisions of this subchapter.

(k) “Eligible” means eligible under the law and this subchapter to be enrolled.

(l) “Retirement System” means the Public Employees' Retirement System, the State Teachers' Retirement System, the Legislators' Retirement System, or the Judges' Retirement System, as the case may be, under which a retired person has acquired the status of “annuitant.”

(m) Tenses and Number. The present tense includes the past and future, and the future the present; the singular includes the plural and the plural the singular.

(n) A “child,” as described in Government Code section 22775, means an adopted, step, or recognized natural child until attainment of age 26, unless the child is disabled as described in section 599.500, subdivision (p).

(o) In addition to a “child” as described in Government Code section 22775, “family member” also includes any child for whom the employee or annuitant has assumed a parent-child relationship, in lieu of a parent-child relationship described in subdivision (n), as indicated by intentional assumption of parental status, or assumption of parental duties by the employee or annuitant, as certified by the employee or annuitant at the time of enrollment of the child, and annually thereafter up to the age of 26 unless the child is disabled as described in section 599.500, subdivision (p). This section should not be construed to include foster children.

(p) “Disabled child,” means a child, as described in Government Code section 22775 and section 599.500, subdivision (n) or (o), who at the time of attaining age 26, is incapable of self-support because of a physical or mental disability which existed continuously from a date prior to attainment of age 26 and who is enrolled pursuant to section 599.501, subdivisions (f) and (g), until termination of such incapacity.

(q) Meanings of terms related to Medicare are as follows:

“Medicare” means the Health Insurance For The Aged provided under Title XVIII of the Social Security Act; “Part A” means Hospital Insurance as defined in Title XVIII of the Social Security Act; and “Part B” means Medical Insurance as defined in Title XVIII of the Social Security Act.

(r) “Supplemental Plan” means a health benefits plan providing supplemental benefits for persons enrolled under Medicare Parts A and B.

(s) “Health benefits plan” or “plan” means a health benefits plan contracted for or approved by the Board pursuant to Sections 22793, 22850 and 22853, Government Code.

(t) “Conversion plan” means a nongroup contract offered by the carrier as its standard individual membership plan.

(u) “Control Period” means a period from January 1 through June 30 or July 1 through December 31.

(v) “Alternative benefit plan” means a health benefits plan approved, or contracted for, by the Board exclusively for employees or annuitants of contracting agencies pursuant to Section 22850(f)(2) of the Government Code.

NOTE

Authority cited: Sections 22794, 22796, 22800, 22830, 22831, 22846(a) and 22860, Government Code. Reference: Sections 22750-22944, Government Code.

HISTORY

1. Amendment filed 6-15-79; designated effective 8-1-79 (Register 79, No. 24). For prior history, see Register 74, No. 36.

2. Amendment filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).

3. Amendment of subsections (j) and (o)-(s) filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).

4. New subsection (t) filed 4-13-2004 as an emergency; operative 4-13-2004 (Register 2004, No. 16). A Certificate of Compliance must be transmitted to OAL by 8-11-2004 or emergency language will be repealed by operation of law on the following day.

5. Certificate of Compliance as to 4-13-2004 order transmitted to OAL 8-3-2004 and filed 9-15-2004 (Register 2004, No. 38).

6. Change without regulatory effect amending subsections (a), (n), (q) and (t) and amending Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).

7. Amendment of subchapter heading, new article 1 heading and amendment of first paragraph and subsection (a) filed 1-26-2007; operative 1-26-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 4).

8. Amendment of subsection (n), new subsections (o) and (p) and subsection relettering filed 2-15-2011; operative 2-15-2011 pursuant to Government Code section 11343.4 (Register 2011, No. 7).

§599.501. Coverage.

Note • History

(a) Each employee or annuitant other than those excluded by subsections (b) or (c) below, is eligible to be enrolled in a health benefits plan at the times and under the conditions prescribed in this subchapter, provided however that no person shall be enrolled in a supplemental plan who at the time of enrollment is not also enrolled under Part A and Part B of Medicare. An eligible employee or annuitant enrolled in both Parts A and B of Medicare, or who has a family member who is so enrolled, may be enrolled in a basic plan contracted for by the Board with respect to persons not enrolled in Parts A and B, and in a supplemental plan provided by the same carrier with respect to all persons enrolled in Parts A and B.

(b) Employees in the following groups are not eligible:

(1) Employees serving under:

(A) Intermittent appointments except where employment is on a permanent basis.

(B) Appointments to positions for which contributions are made by the employer to health and welfare programs providing prepaid hospital and medical care in accordance with Sections 14876 and 18853.5 of the Government Code, or Section 1705.5 of the Harbors and Navigation Code, or other similar provisions; or appointments to positions for which salary payment is made in lieu of payment to health and welfare programs providing prepaid hospital and medical care; or

(C) Appointments to positions not exceeding six months duration unless the employee is enrolled prior to beginning service under such appointment or unless the appointment is in lieu of a permanent appointment pending establishment of and certification from a list from which the position may be filled.

(2) Inmates of institutions who are allowed compensation for such services as they are able to perform.

(3) Persons employed as student assistants and graduate assistants and as student aids in special schools in the State Department of Education and Vocational Rehabilitation, and the public schools of the State.

(4) Blind persons and other physically handicapped persons employed by the California Industries for the Blind, or in opportunity centers for the blind by the Department of Education who are not civil service employees.

(5) Persons serving at a State college solely as a teacher in any summer session or intersession for which compensation is specifically attributable to such service in summer session or intersession.

(6) Any member of the Veterans' Home of California who is employed by said Home, or by the Post Exchange thereof or in other Post Fund activities, except as an employee of a contracting agency.

(7) Any employee paid wholly from funds not controlled by the employer or from revolving or similar funds from which regular payroll deduction of the insurance premium cannot be made.

(8) Employees of a contracting agency who are not members of the Public Employees' Retirement System or the State Teachers' Retirement System.

(c) Annuitant whose monthly allowance is insufficient to pay withholdings required under the lowest cost plan available is not eligible.

(d) Annuitants whose effective date of retirement is more than 120 days after their date of separation from employment are not eligible.

(e) Annuitants who were not enrolled at the time of separation from employment are not eligible.

(f) A disabled child as described in section 599.500, subdivision (p), who is age 26 or over is to be enrolled at the time of the initial enrollment of the employee or annuitant provided that satisfactory evidence of such disability is filed with the Board within 60 days of the initial enrollment.

(g) A disabled child, as described in section 599.500, subdivision (p), who attains age 26 is to be continued in enrollment if he or she is enrolled at the time he or she attains age 26, provided that satisfactory evidence of such disability is filed with the Board during the period commencing 60 days before and ending 60 days after the child's 26th birthday.

(h) The Board shall make determinations of the applicability of this section to specific employees or annuitants, or groups of employees or annuitants.

(i) A family member who is not acceptable for enrollment under the underwriting standards of the carrier where application for enrollment is under Section 599.502(c) or (f)(1)(B) is ineligible to be enrolled except during an open enrollment period.

NOTE

Authority cited: Sections 22794, 22796, 22800, 22830, 22831, 22846(a) and 22860, Government Code. Reference: Sections 22760(h), 22775, 22800, 22819, 22830, 22831, 22832 and 22837, Government Code.

HISTORY

1. Amendment of subsections (e)(2) and (f) filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32). For prior history, see Register 75, No. 49.

2. Amendment filed 6-15-79; designated effective 8-1-79 (Register 79, No. 24).

3. Amendment filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).

4. Amendment filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).

5. Change without regulatory effect amending subsection (c) and Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).

6. Amendment of subsections (f) and (g) filed 2-15-2011; operative 2-15-2011 pursuant to Government Code section 11343.4 (Register 2011, No. 7).

§599.502. Enrollment.

Note • History

(a) Type of Enrollment. An eligible employee or annuitant may enroll for self alone, self and one family member or self and two or more family members. If he or she enrolls for other than self alone, he or she shall enroll all eligible family members. All eligible family members shall be enrolled under the enrollment of only one employee or annuitant. The following family members are not required to be enrolled:

(1) A family member covered under another basic group plan that is not contracted for or approved by the Board;

(2) A family member who is a spouse not living in the member's household; or

(3) A family member who is a child who has attained the age of 18; or

(4) A family member who is a member of the armed forces.

(5) A plan shall not be liable for benefits for a family member, other than as provided in Sections 599.502(f)(1)(E) and 599.503(d), nor shall an employee or annuitant be obligated for an increased premium or charge because of such member unless he or she has been included by name in the employee's or annuitant's enrollment.

(6) Upon discovery that a family member required to be enrolled has not been so included, except as provided in Sections 599.502(f)(1)(E) and 599.503(d), the employee or annuitant shall be given notice that all coverage of family members will cease on the last day of the following month unless he or she has changed his or her enrollment to include such family members prior to the cessation of such coverage.

(b) Initial Enrollment.

(1) An eligible employee shall enroll or register not to enroll no later than his or her 60th calendar day of employment or reemployment following a break in service of at least one full monthly pay period.

(2) A permanent intermittent employee shall enroll or register not to enroll no later than 60 calendar days following the end of a control period in which he or she received credit for a minimum of 480 paid hours.

(3) An annuitant or an employee who is brought within coverage of the Act shall enroll or register not to enroll within sixty days of notice of eligibility.

(4) An employee who is on leave of absence without compensation, temporary disability compensation whether or not supplemented by sick leave or vacation, or Non-industrial Disability Leave, or Industrial Disability Leave, or other non-pay status, may not enroll while in such status but shall enroll or register not to enroll within 60 days of his or her return to pay status, if he or she would otherwise have been eligible to enroll during the nonpay status.

(5) An employee of a contracting agency which has filed an election to be subject to the Public Employees' Medical and Hospital Care Act, including an employee of such agency who was on leave of absence or other non-pay status and was enrolled in a health benefits plan of the agency, but shall enroll or register not to enroll no later than the 60th calendar day following such agency's effective date of participation under the Act.

(6) An annuitant who retired while an employee of a contracting agency which has elected to be subject to the Public Employees' Medical and Hospital Care Act, and whose retirement is effective on or prior to the effective date of such election, may enroll no later than the 60th calendar day following notification of eligibility.

(7) An employee whose enrollment did not become effective under the provisions of Section 599.503(a) because of failure to accomplish premium deductions may enroll within 60 calendar days of notification of right to enroll.

An eligible employee may enroll at any time while in an employment in which he or she was eligible to but did not enroll at the time specified in this subsection, and an eligible annuitant may enroll if at the time of enrollment he or she presents a certification from the carrier of the plan that his or her enrollment is acceptable under the underwriting standards of the carrier.

(d) Re-enrollment:

(1) An employee whose enrollment terminated under Section 599.506(a)(5) may enroll within 60 calendar days following the end of a control period in which he or she received credit for a minimum of 480 paid hours.

(2) An employee whose enrollment terminated because of administrative failure to continue payroll deductions under Section 599.506(a)(1)(B) may enroll within 60 calendar days of receipt of notification of termination.

(3) A person whose enrollment terminated upon separation from employment and who is retired with an effective date no later than 120 days following the date of separation, may enroll as an annuitant within 60 calendar days of receipt of notification of eligibility or during any open enrollment period.

(4) An annuitant whose enrollment terminated under Section 599.506(d) because his or her retirement allowance was not sufficient to pay the withholdings of any plan in which he or she was eligible to be enrolled may re-enroll within 60 calendar days of notification that his or her retirement allowance is sufficient to pay the withholdings of a plan in which he or she is eligible to be enrolled.

(e) The Board will, at least once every three years, provide every employee and annuitant previously enrolled or eligible to enroll or continue enrollment an opportunity for enrollment, and every enrolled employee and annuitant an opportunity for change of enrollment, on such terms and conditions as it may prescribe.

(f) Change of Enrollment.

(1)(A) An enrolled employee or annuitant may, prior to, at the time of, or within 60 calendar days after acquiring his or her first eligible family member required to be enrolled, change his or her enrollment to include all family members required to be enrolled.

(B) An enrolled employee or annuitant may change his or her enrollment to include all eligible family members required to be enrolled who are acceptable for enrollment under underwriting standards of the carrier if at the time of such change he or she presents a certification of such acceptability from the carrier of the plan in which he or she is enrolled or if such change of enrollment is made during an open enrollment period.

(C) A family member who is not enrolled because of other group coverage or because such person is a spouse not living in the employee's or annuitant's household may not thereafter be enrolled as a family member except during an open enrollment period or pursuant to the carrier's certification of acceptability under its underwriting standards.

(D) A family member who is a child who has attained the age of 18 and who is not enrolled may not be enrolled except upon return from military service as provided in Section 599.502(f)(2), or pursuant to the carrier's certification of acceptability under underwriting standards, or during an open enrollment period.

(E) Notwithstanding any other provision of this subchapter, an employee or annuitant enrolled for self only may enroll a newborn or adopted child provided application for enrollment is received within 60 calendar days of the date of birth or the date physical custody was obtained. The coverage of a newborn or adopted child of an employee or annuitant enrolled for self only begins on the date of birth or the date physical custody is obtained and ends on the last day of that month unless an application to enroll that child is received.

(2) An employee or annuitant may at any time change his or her enrollment from self and family to self alone, or delete an eligible family member who is a child who has attained the age of 18 or enters military service. An employee or annuitant may decrease “family member” enrollment from self and two or more to self and one family member on or after the day on which the last family member in excess of one:

(A) ceases to be a family member;

(B) becomes enrolled in another basic group plan; or

(D) A spouse whose enrollment is terminated on the basis of ceasing to live in the household may not be enrolled thereafter except during an open enrollment period or pursuant to the carrier's certification of acceptability under its underwriting standards.

(E) A family member who is a spouse or a child who was deleted from an employee's or annuitant's enrollment upon entering military service or was in military service at the time of initial enrollment or at the time he or she became a family member may be enrolled upon return from military service.

(3) Except as described in 599.506(f), when a mandatory change of enrollment results in a retroactive cancellation or deletion of enrollment and creates a difference in premium based on the date a family member became ineligible for coverage and the date an employee or annuitant changed his or her enrollment to delete the ineligible family member, the employer and employee or annuitant may receive a refund. The amount of the refund shall not exceed those excess premiums paid for a period of up to six months prior to the date on which the action is processed and recorded, pursuant to the employee's or annuitant's request for retroactive cancellation or deletion of the ineligible family member.

(4) An employee or annuitant who is not enrolled, but is covered under the Public Employees' Medical and Hospital Care Act and this subchapter by enrollment of a spouse, may enroll in the same plan as was the spouse for self alone or self and eligible family members within 60 calendar days after termination of the spouse's enrollment. An employee who is not enrolled, but is covered by the enrollment of a parent, may enroll in any plan available within 60 calendar days after the termination of coverage as a family member. An employee or annuitant who is covered by enrollment of another under this subchapter may enroll in the same plan for self alone or self and eligible family members within 60 calendar days after the effective date of a change terminating his or her enrollment.

(5) An employee who is enrolled as an annuitant and whose status as an annuitant terminates, may enroll in the same plan under which he or she was covered as an annuitant, in a manner which will continue coverage.

(6)(A) An employee or annuitant who is enrolled in a plan with a restricted geographic service area and who moves, including all enrolled family members, or changes employment address may, within 31 calendar days before the move and ending 60 calendar days after the move, enroll in another health benefits plan.

(B) An employee or annuitant who is enrolled in a plan with a restricted geographic service area and who moves, and whose enrolled family members do not move, may, within 31 calendar days before the move and ending 60 calendar days after the move, enroll in another health benefits plan.

(C) An employee or annuitant who is enrolled in a plan with a restricted geographic service area and whose enrolled family members move, may within 31 calendar days before the move and ending 60 calendar days after the move, enroll in another health benefits plan.

(D) An employee or annuitant who moves into, or commences employment within, the service area of a plan with a restricted geographic service area may change his or her enrollment to that plan within the period beginning 31 calendar days before and ending 60 calendar days after the move.

(E) An employee or annuitant enrolled in a supplemental plan who moves, other than temporarily, out of the United States as defined in the Federal Social Security Act, may change his or her enrollment to the basic plan provided by the carrier of the supplemental plan.

(7) An employee or annuitant who is enrolled in a health benefits plan which ceases to be an approved health benefits plan may enroll in another plan at any time within 60 calendar days after the date set by the Board for withdrawal of its approval of the plan.

(8) When an employee or annuitant enrolled for self and family dies, leaving a family member as an annuitant entitled to enrollment in a health benefits plan, the enrollment shall continue by enrollment of the surviving annuitant. The family member annuitant may change or cancel the enrollment providing he or she does so within 60 calendar days of notification of continuation. The effective date of the change or cancellation shall be the first of the month following the death.

(9) For purposes of this subsection (f) and subsection (a) of this section, a change in custody of a child, whether or not accompanied by a change in economic dependency, at the option of the enrolled employee or employees may be considered to terminate or begin eligibility of the child as a family member of the employee or employees affected by the change in custody.

(10) An employee whose enrollment was continued under Section 599.504(b), (c), (d), (e) or (g) may within 60 days of return to pay status make any change in enrollment which he or she could have made had he or she been in pay status during the continuation.

(11) Upon a determination by the Board or the Executive Officer that an employee or annuitant is unable to maintain a satisfactory physician-patient or plan-employee-annuitant relationship, the Board or Executive Officer may permit a change of enrollment to another plan.

(12) An employee may add or delete family members under the provisions of this section during a period of continuation of enrollment under the provisions of Section 599.504.

(13) Enrollment of any person in a supplemental plan may not be changed to enrollment in a basic plan unless there is an involuntary termination of Medicare benefits or as provided in subdivision (f)(6)(E) of this section.

(g) Multiple Enrollment.

(1) A family member may be enrolled with respect to only one employee or annuitant. An employee or annuitant, who is also a family member of an employee or annuitant, may not be enrolled both as an employee or annuitant and a family member. Enrollment as a family member continues upon entry into employment unless the person enrolls under the rules applicable to employees, in which event enrollment as a family member terminates on the effective date of enrollment as an employee.

(2) An annuitant who would otherwise also be eligible to enroll as an employee must enroll as an annuitant; however, an annuitant who fails to enroll under rules applicable to annuitants and who subsequently becomes an employee, may enroll under rules applicable to employees.

(3) Employees who are employed in more than one position with an employer or employed by more than one employer may enroll with respect to one position or employer only.

(4) Employees and annuitants may not enroll in more than one plan. For the purposes of this subsection, one plan includes a combination of basic or supplemental plans. Where an employee or annuitant has filed more than one enrollment form, in the absence of specific instruction from the employee or annuitant to the contrary, the last enrollment form filed shall be taken as indicating the plan in which the employee desires to enroll.

(h) Late Enrollment or Change of Enrollment. Upon a determination by the Board or the Executive Officer that an employee or annuitant was unable, for cause beyond his or her control, to enroll or to change enrollment within the time limits prescribed by this subchapter, the Board shall accept his or her enrollment or change of enrollment provided he or she enrolls or changes enrollment within 31 days after he or she is first able to do so.

(i) Procedure. The employing office will afford each eligible employee and annuitant an opportunity to enroll or to register not to enroll during such times as his enrollment is authorized under these rules by supplying the necessary information relating to available plans and by assisting in the completion of a health benefits plan enrollment form. The employing office will forward all such forms properly completed to the Board's Health Benefits Division.

NOTE

Authority cited: Sections 22794, 22796, 22803, 22830, 22846 and 22860, Government Code. Reference: Sections 22830, 22831, 22832, 22834, 22836, 22837, 22839, 22840, 22841, 22842, 22843, 22844, 22846, 22847 and 22848, Government Code.

HISTORY

1. Amendment of subsections (c), (d)(3), and (f)(1)(D) filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32). For prior history, see Register 75, No. 49.

2. Amendment filed 6-15-79; designated effective 8-1-79 (Register 79, No. 24).

3. Amendment filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).

4. Amendment of subsections (a)-(d) and (f) filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).

5. Amendment of subsections (f)(5)(A)-(D) filed 10-4-2001 as an emergency; operative 10-4-2001 (Register 2001, No. 40). A Certificate of Compliance must be transmitted to OAL by 2-1-2002 or emergency language will be repealed by operation of law on the following day.

6. Certificate of Compliance as to 10-4-2001 order transmitted to OAL 2-1-2002 and filed 3-18-2002 (Register 2002, No. 12).

7. Amendment of subsection (f)(2)(C) and amendment of Note filed 6-24-2005; operative 6-24-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 25).

8. Redesignation of portions of second paragraph of subsection (f)(2)(C) as new subsections (f)(2)(D)-(E), redesignation and amendment of former third paragraph of subsection (f)(2)(C) as new subsection (f)(3) and subsection renumbering filed 9-27-2011; operative 9-27-2011 pursuant to Government Code section 11343.4 (Register 2011, No. 39).

§599.503. Effective Date of Enrollment.

Note • History

(a) Normal Effective Date. The effective date of enrollment, re-enrollment, or change of enrollment shall be the first of the month following the date the employee or annuitant's Health Benefits Plan Enrollment Form is received in the employing office, subject to deferral under subsection (b) of this section. An enrollment shall not become effective if payroll deduction is not accomplished within six months following the date on which such enrollment would normally have become effective.

(b) Deferred Effective Date. The effective date of enrollment of an employee or annuitant who, in the month preceding that in which his or her enrollment would otherwise be effective, has insufficient earnings after all other mandatory deductions to permit deduction of his or her full contributions, shall be the first day of the month following that in which his or her earnings after other mandatory deductions are sufficient to permit such deduction. This applies to an employee hired on the last day of the month which is also the first day of a pay period.

(c) Effective Date of Enrollment by Certification of Acceptability. The effective date of enrollment, re-enrollment or change of enrollment for an employee or annuitant with respect to whom a certification of acceptability is received by his or her employing office shall be the first day of the following month subject to deferral under subsection (b) of this section.

(d) Effective Date of Enrollment of a Newborn Child or Adopted Child of an Employee or Annuitant Enrolled for Self and One or More Family Members. Notwithstanding the effective date of enrollment as otherwise specified in this section, and without requirement of any prior enrolling action, enrollment of a newborn child or adopted child of an employee or annuitant who has enrolled family members shall be effective on the date of birth or the date physical custody is obtained, and any increase in premium because of the addition of such family member shall be effective on the first of the following month.

(e) Effective Date of Enrollment of an Annuitant on Approval of Retirement. The effective date of enrollment of an annuitant under Section 599.502(d)(3) is the first of the month following the month in which retirement is approved, but in no event earlier than the first day of the month following the effective date of retirement.

(f) Effective Date of Enrollment of an Eligible Family Member (other than an adopted or newborn child). The effective date of a change of enrollment adding an eligible family member, other than an adopted or a newborn child, shall be the first of the month following the date the Health Benefits Plan Enrollment Form is received in the employing office. Enrollment of an eligible family member may not be earlier than the first day of the month following the acquisition of the family member.

(g) Contracting Agency Employees and Annuitants. Enrollments of a contracting agency's employees and annuitants which are received in the office of the Board on or before the last day of the month immediately preceding the effective date of the agency's participation under the Act shall be effective on the effective date of such agency participation.

(h) Effective Date of Enrollment of a Newborn Child or Adopted Child of an Employee or Annuitant Enrolled for Self Only. The effective date of enrollment of a newborn or adopted child of an employee or annuitant enrolled for self only shall be the first day of the month following the date of birth or the date physical custody is obtained. Any premium increase resulting from the enrollment of such child shall be due from the effective date of enrollment.

(i) Effective Date in Open Enrollment Period. The effective date of enrollment in special or limited open enrollment period shall be fixed by the Board in its action providing such open enrollment period.

NOTE

Authority cited: Sections 22794, 22796, 22846(a) and 22860, Government Code. Reference: Section 22846(a), Government Code.

HISTORY

1. Amendment filed 6-15-79; designated effective 8-1-79 (Register 79, No. 24). For prior history, see Register 75, No. 19.

2. Amendment filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).

3. Amendment of subsections (e) and (g)-(j) filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).

4. Change without regulatory effect amending subsection (d) and Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).

§599.504. Continuation of Enrollment.

Note • History

Subject to the right of an employee or annuitant to cancel his or her enrollment at any time, the enrollment of an employee or annuitant continues without change when he or she:

(a) returns to covered employment without a break in service of one or more full monthly pay periods.

(b) is granted a leave of absence without pay under the State Civil Service Act and the rules of the Department of Personnel Administration for a period of one or more full monthly pay periods including leaves of absence for military duty, or other comparable leave, or begins an absence for which he or she has applied for temporary disability compensation, provided he or she files with the Board application for continuation of enrollment prior to the commencement of the leave, or no later than the last day of the month following the month in which the last payroll deduction was taken.

(c) institutes legal proceedings in appealing dismissal from service for cause, provided he or she files with the Board application for continuation of enrollment no later than the last day of the month following the month in which the last payroll deduction was taken.

(d) is suspended from service for one or more full monthly pay periods without pay, provided he or she files with the Board application for continuation of enrollment no later than the last day of the month following the month in which the last payroll deduction was taken.

(e) receives in any monthly pay period insufficient compensation, after all other mandatory deductions, to permit deduction of his or her full contribution providing proper application for continuation of enrollment is filed no later than the last day of the month following the month in which the last payroll deduction was taken.

(f) applies for disability retirement and files an application for continuation of enrollment no later than the last day of the month following the month in which the last payroll deduction was taken. Upon receipt of premiums from the retirement system, the carrier shall refund overpayments to the annuitant.

(g) first attains the status of “annuitant.” The Retirement System shall continue the enrollment unchanged and the annuitant contributions required under the plan shall be deducted from the annuitant's retirement allowance.

(h) enters nonpay status as a permanent employee of a State college employed on a less-than-twelve-month basis, provided he or she files application for continuation of enrollment with the Board no later than the last day of the month following the month in which the last payroll deduction was taken.

If an enrolled employee or annuitant is not competent to act, the guardian, conservator, or person having special power of attorney of such enrolled employee or annuitant may act on his or her behalf to accomplish continuation of any enrollment permitted by this section.

Failure to file an application for continuation or failure to pay premiums after filing an application will result in loss of coverage for any period for which premiums were not paid.

NOTE

Authority cited: Sections 22794, 22796 and 22846(a), Government Code. Reference: Section 22846(a), Government Code.

HISTORY

1. Amendment of subsection (f) filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32). For prior history, see Register 71, No. 3.

2. Amendment filed 6-15-79; designated effective 8-1-79 (Register 79, No. 24).

3. Amendment filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).

4. Amendment filed 6-9-85; effective thirtieth day thereafter (Register 86, No. 24).

5. Change without regulatory effect amending Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).

§599.505. Cancellation of Enrollment.

Note • History

(a) An enrolled employee or annuitant may cancel his or her enrollment at any time by filing with his or her employing office a properly completed Health Benefits Plan Enrollment Form requesting such cancellation. The effective date of cancellation shall be midnight of the last day of the month in which the enrollment form is received by the employing office.

(b) Upon cancellation, an employee or annuitant and the members of his or her family are not entitled to convert to an individual health benefits contract.

NOTE

Authority cited: Sections 22794, 22796 and 22846(a), Government Code. Reference: Section 22846(a), Government Code.

HISTORY

1. Amendment of subsections (a) and (c) filed 6-15-79; designated effective 8-1-79 (Register 79, No. 24). For prior history, see Register 69, No. 8.

2. Amendment of subsections (a) and (c) filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).

3. Repealer of subsection (c) filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).

4. Change without regulatory effect amending Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).

§599.506. Termination of Enrollment.

Note • History

(a) An employee's enrollment ceases at midnight of the earliest of the following dates:

(1) The last day of the month following the month in which:

(A) employment is terminated either by resignation or by his or her agency for reasons other than for cause;

(B) the last payroll deduction was taken when payroll deduction was discontinued through administrative error if such deduction was not taken for a continuous period of six months;

(2) Where enrollment has been continued while appealing dismissal from service for cause, under the provisions of Section 599.504, the last day of the month in which such appeal action or actions has or have been terminated with the dismissal being upheld or in which the Board determines that the employee has ceased to diligently pursue his or her appeal.

(3) The last day of the month following the month in which employment status changes so that he or she is excluded from enrollment.

(4) The last day of the month in which he or she dies.

(5) The last day of the month following the last month during which a permanent intermittent employee worked less than 480 hours during a six-month control period or 960 hours during a twelve-month control period.

(6) The last day of the month in which application for disability retirement is denied or withdrawn by the employee where enrollment was continued under Section 599.504(f) pending action on the application.

(b) An annuitant's enrollment ceases at midnight of the earliest of the following dates:

(1) The last day of the month in which he or she dies.

(2) The last day of the month following the month in which he or she ceases to be in the status of “annuitant,” unless he or she is eligible for enrollment as an employee in which case his or her enrollment will continue under the plan in which he or she is enrolled.

(c) The coverage of a family member under an employee's or annuitant's enrollment ceases at midnight of the earliest of the following dates, unless he or she is eligible to enroll as an employee, in which case, if he or she enrolls within 60 calendar days after said date, his or her enrollment continues under the plan in which he or she enrolls:

(1) The last day of the month in which he or she ceases to be a family member, or to be eligible for enrollment as a family member. The enrollment of an employee or annuitant shall not be changed by such termination of coverage, and his or her contribution shall continue unchanged until he or she changes enrollment in the manner and at the time provided under Section 599.502(f)(2) or until an administrative document is processed. However, payment by the carrier of any difference between the premium paid between the date of termination of coverage and the effective date of the change in enrollment, and that which would have been paid had the change in enrollment been effective on the date of termination of coverage, shall not exceed those excess premiums paid for a period of up to six months prior to the date on which the action is processed and recorded, pursuant to the employee's or annuitant's request for retroactive cancellation or deletion of the ineligible family member. Payment shall be made to the employer or the enrolled employee or annuitant as their interests appear and in such manner as may be directed by the Executive Officer of the Board.

(2) The day the employee or annuitant ceases to be enrolled, unless the family member continues to be enrolled as a surviving annuitant under the provisions of Section 599.502(f)(7).

(3) On the effective date of an employee's or annuitant's change of enrollment to decrease or terminate family member enrollment.

(d) If the retirement allowance of an annuitant is not sufficient to pay the withholdings for the plan in which the annuitant is enrolled, the retirement system from which the allowance is being paid shall notify the annuitant of the plans available at a cost not in excess of the retirement allowance. The annuitant may enroll in another plan whose cost is no greater than his or her allowance, if such plan is available. If the annuitant does not or cannot elect a plan at a cost to him or her not in excess of the allowance, the enrollment of the annuitant shall cease, effective as of the end of the last month for which withholding was made. Each annuitant whose enrollment is so terminated is entitled to conversion pursuant to Section 599.507.

(e) Whenever under this section enrollment terminates on the last day of the month and the monthly payroll period for a state department or agency does not coincide with the calendar month, enrollment ceases as of the last day of the calendar month most closely corresponding to the payroll month in which the event resulting in the termination occurs.

(f) Notwithstanding effective dates prescribed in this section, a termination or cancellation of enrollment based on a reduction in hours or time base must be effective prospectively only. Upon a 30-day notice, terminations or cancellations for a reduction in hours or time base may be effective retroactively if coverage was based upon fraud or intentional misrepresentation of material fact.

NOTE

Authority cited: Sections 22794, 22796 and 22846, Government Code. Reference: Section 22846, Government Code.

HISTORY

1. Amendment filed 6-15-79; designated effective 8-1-79 (Register 79, No. 24). For prior history, see Register 72, No. 24.

2. Amendment filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).

3. Amendment filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).

4. Amendment of subsection (c)(1) and amendment of Note filed 6-24-2005; operative 6-24-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 25).

5. New subsection (f) filed 9-27-2011; operative 9-27-2011 pursuant to Government Code section 11343.4 (Register 2011, No. 39).

§599.507. Conversion.

Note • History

An employee or annuitant whose enrollment is terminated other than by cancellation or withdrawal of his or her employer from participation in the Public Employees' Medical and Hospital Care Act, and any family member whose coverage terminated because of termination of enrollment of an employee or annuitant or because of loss of family member status, is entitled to the issuance of a conversion plan provided that application is made and the premium or other periodic charge is paid within one month of the date of termination of enrollment or termination of family member status, in which event coverage under the conversion plan shall become effective at 12:01 a.m. the day following such termination.

NOTE

Authority cited: Sections 22794, 22796 and 22842, Government Code. Reference: Section 22842, Government Code.

HISTORY

1. Amendment filed 7-31-68 as an emergency; effective upon filing. (Register 68, No. 29). For prior history, see Register 67, No. 43.

2. Certificate of Compliance--Section 11422.1, Gov. Code, filed 11-27-68 (Register 68, No. 45).

3. Amendment filed 6-15-79; designated effective 8-1-79 (Register 79, No. 24).

4. Amendment filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).

5. Amendment filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).

6. Change without regulatory effect amending Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).

§599.508. Minimum Standards for Health Benefits Plans.

Note • History

(a) To be qualified to be approved or adopted by the Board, a health benefits plan must:

(1) Comply with the Public Employees' Medical and Hospital Care Act and this subchapter, as amended from time to time.

(2) Accept enrollment, in accordance with this subchapter, without regard to physical condition, age, ethnic origin, religion or sex at the time of original group enrollment, of all eligible employees or annuitants, except that plans which are sponsored by employee organizations need not accept enrollment of persons who are not members of the organization.

(3) Provide for coverage of enrolled employees and annuitants, and covered members of their families.

(4) Extend to all employees, annuitants and family members who are eligible therefor the right, during the time allowed, to convert to a contract for health benefits regularly offered by the carrier, or an appropriate affiliate, for group conversion purposes. Such contract must, at the option of the employee, annuitant or family member, be continued in effect by the carrier except for fraud or nonpayment of contractual charges.

The contract shall, upon conversion, become effective as of the day following the date of termination of coverage, and the employee or annuitant shall pay the entire cost thereof directly to the carrier. The nongroup contract may not deny or delay any benefit that it provides for a person converting from a plan approved under this subchapter, except to the extent that benefits are continued under the health benefits plan from which he or she converts.

The Board may request an extension of time for conversion because of delayed determination of ineligibility for service retirement or disability retirement, in which case conversion must be permitted until the date specified by the Board in its request for extension.

Any such conversion contract may provide for an adjustment of benefits with respect to any covered person at such age as he or she becomes eligible to participate in benefits provided under either Part A or Part B of Title XVIII, Social Security Act.

(5)(A) Provide that any person, whether employee, annuitant, or family member, whose enrollment terminates other than by voluntary cancellation or termination of the group agreement, and who, on the day of termination is hospitalized, shall be granted a continuation of the benefits of the plan with respect to medical conditions that were present or pre-existing at the time of hospitalization or occurred during the hospitalization and which require continued hospitalization, but not beyond the 91st day following the termination.

(B) Provide that any person, whether employee, annuitant, or family member, whose enrollment has been changed from one plan to another and who on the effective date of such change is hospitalized, shall be granted a continuation of the benefits of the prior plan with respect to medical conditions that were present or pre-existing at the time of hospitalization or occurred during the hospitalization and which require continued hospitalization, but not beyond the 91st day following the last day of enrollment in the prior plan. Upon change of enrollment to the plan of a person so hospitalized on the effective date of the change, benefits with respect to the cause of such hospitalization shall not be paid or provided while that person is entitled to continuance of benefits under the prior plan, but all other benefits will be paid during such period.

(C) Provide that any person whether employee, annuitant or family member who is totally disabled on the date of termination of the group contract, shall be granted a continuation of the benefits of the plan with respect to the cause of such total disability for up to 12 months after the date of termination, subject to plan maximums and provisions.

(6) Provide that each employee and annuitant who enrolls in a plan receive evidence of enrollment in a form to be approved by the Board, summarizing the conditions of the plan including but not limited to, those concerning benefits, claims, and payment of claims.

(7) Provide a standard rate structure which contains one standard individual rate, one standard rate for employees and annuitants with one dependent, and one standard rate for employees and annuitants with two or more dependents, without geographical or other variation. Notwithstanding the foregoing, and subject to the approval of the Board, a health benefits plan may charge contracting agency employees and annuitants rates that are based on regional variations in the costs of health care services.

(8) Maintain statistical records regarding the plan as are agreed to by the Board, separately from those of any other activities or benefits conducted or offered by the carrier administering the plan, so as to reveal the utilization of benefits under the plan, the gross and net cost of such benefits, and the administrative cost experienced under the plan as it pertains to employees and annuitants enrolled under this subchapter.

(9) Provide for payment to a special reserve, as of the end of any contract period, of so much of the contributions and other income attributable to the plan as exceeds the sum incurred for benefit payments, administrative expenses, premium and other taxes, risk charges, and other retention charges. Upon the request of the Board, made after a public hearing on the question, contribution rates must be reduced and/or benefits increased, whichever is appropriate in judgment of the Board, whenever the special reserve exceeds the latest three calendar months' contributions paid under the plan. In determining the amount of incurred benefits paid under the plan, reasonable reserves may be established for pending claims and incurred but unreported claims. All such claim reserves, and the special reserves, must be accounted for separately from reserves maintained by the carrier for other plans. Income derived from the investment of the special reserves shall be credited to the reserves at 100% of the plan's annual corporate rate of interest. Income reasonably attributable to investment of claim reserves shall be taken into account in determining the amount of retention charges. In the event the contract is terminated, the underwriting or obligation under the plan is assumed by a different carrier, or approval of the plan is withdrawn, the special reserve and such portion of any claim reserves as are not finally utilized in the payment of benefits under the plan shall be paid into the Public Employees' Contingency Reserve Fund for the benefit of the plan, and the Board may then transfer such reserves to successor plans and/or carriers on such basis as it determines to be equitable after a public hearing held within 18 months following the effective date of the plan's termination, withdrawal of approval, or transfer to a different carrier. For a carrier providing service benefits, the board may approve the use of other equitable and practical financial procedures. For plans that are community-rated, the carrier shall, in lieu of being subject to the foregoing provisions of this paragraph, agree to furnish such financial and accounting reports and to follow such recording procedures as may be requested by the Board and that are consistent with the normal operations of the plan.

(10) Provide that in the event an employee or annuitant is dissatisfied with the amount paid or service rendered pursuant to his or her claim on his or her behalf or on behalf of a family member and so requests, representatives of the parties including a representative of the Board will confer in an effort to reach a settlement, provided that no agreement reached by such conferees shall bind the employee, annuitant, or carrier without each party's consent or bar any remedy otherwise available.

(b) To be qualified to be approved by the board, a health benefits plan must not:

(2) Have an initiation, service, enrollment, or other fee or charge in addition to the rate charged for the plan, except that notwithstanding subparagraph (b)(1) of this section, comprehensive group practice prepayment plans and individual practice prepayment plans may impose an additional charge to be paid directly by the employee or annuitant for certain medical supplies and services, if the supplies and services on which additional charges are imposed are clearly set forth in advance and are applicable to all employees and annuitants. This subparagraph does not apply to charges for membership in employee organizations sponsoring plans.

NOTE

Authority cited: Sections 22794 and 22796, Government Code. Reference: Sections 22796, 22850(f)(1) and 22864(b)(3), Government Code.

HISTORY

1. Amendment of subsection (a)(2) filed 1-13-71; designated effective 4-1-71 (Register 71, No. 3). For prior history see Register 67, No. 43.

2. Amendment of subsection (a)(9) filed 12-2-75; effective thirtieth day thereafter (Register 75, No. 49).

3. Amendment of subsections (a)(1)-(a)(4), (a)(7) and (b)(1) filed 6-15-79; designated effective 8-1-79 (Register 79, No. 24).

4. Amendment filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).

5. Amendment of subsection (a) filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).

6. Amendment of subsections (a)(2)-(3) filed 10-4-2001 as an emergency; operative 10-4-2001 (Register 2001, No. 40). A Certificate of Compliance must be transmitted to OAL by 2-1-2002 or emergency language will be repealed by operation of law on the following day.

7. Certificate of Compliance as to 10-4-2001 order transmitted to OAL 2-1-2002 and filed 3-18-2002 (Register 2002, No. 12).

8. Amendment of subsection (a)(7) and amendment of Note filed 4-15-2004 as an emergency; operative 4-15-2004 (Register 2004, No. 16). A Certificate of Compliance must be transmitted to OAL by 8-13-2004 or emergency language will be repealed by operation of law on the following day.

9. Certificate of Compliance as to 4-15-2004 order transmitted to OAL 6-25-2004 and filed 8-9-2004 (Register 2004, No. 33).

10. Change without regulatory effect amending Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).

§599.509. Minimum Standards for Health Benefits Carriers.

Note • History

A health benefits plan will not be approved by the Board unless the carrier of the plan meets, in addition to the requirements of the Public Employees' Medical and Hospital Care Act, the following additional requirements:

(a) It must be lawfully engaged in the business of supplying health benefits.

(b) It must have, in the judgment of the Board, the financial resources, organizational facilities and experience in the field of health benefits to carry out its obligations under the plan.

In the case of carriers for service benefit plans and indemnity benefit plans, the Board in forming its judgment shall be guided by such factors as the length of time the carrier has been in the prepaid health benefits field, the capacity of the carrier to effectively service claims of enrolled employees and annuitants throughout the State, the general financial stability of the carrier as exhibited by examinations of the State Insurance Commissioner or other regulatory bodies, and the extent to which the carrier underwrites other prepaid health benefits plans in California.

In the case of carriers for group practice prepayment plans, the Board in forming its judgment shall be guided by such factors as the number of physicians practicing in the group, the number of physicians practicing in the group as specialists and their qualifications, the proportion of the group's income which is derived from prepayment as opposed to fee-for-service, the extent to which the group utilizes outside consultants, the extent to which ancillary and other related services, both in and out of the hospital, are available in the group, the stability of the group's finances and organization, and the potential for enrollment of employees and annuitants under the plan as well as the plan's capacity for servicing such potential enrollees including a demonstrated commitment to cost containment, innovative services, effectiveness of utilization review, and success in achieving market penetration.

In the case of carriers for individual practice prepayment plans, the Board in forming its judgment shall be guided by such factors as the number of physicians participating in the plan, the number of physicians practicing as specialists and their qualifications, the extent to which ancillary and other related services, both in and out of the hospital, are covered, the stability of the plan, finances and organization of the plan, the plan's financial responsibility, and the potential for enrollment of employees and annuitants under the plan, as well as the plan's capacity for servicing such potential enrollees including a demonstrated commitment to cost containment, innovative services, effectiveness of utilization review, and success in achieving market penetration.

(c) It must agree to keep such reasonable financial and statistical records and furnish such reasonable financial and statistical reports with respect to the plan as may be requested by the Board, which may include but is not limited to:

(1) Number of persons enrolled under the plan, by employee, annuitant, and family coverage.

(2) Contributions received from such employees and annuitants, and the employer.

(3) Claims incurred on behalf of such employees and annuitants, including health benefits payments made, or services rendered, by employee, annuitant, and family coverage.

(4) Expense and risk or other retention charges.

(5) Reserves established under the plan.

(d) It must agree to permit representatives of the Board to audit and examine its records and accounts which pertain, directly or indirectly, to the plan at such reasonable times and places as may be designated by the Board. However, any privileged medical information relating to any claimant's medical history and record need not be released by the carrier or revealed to the Board or its representatives, to the extent that any patient's identity is revealed. However, such data must be provided in abstract format upon request by the Board.

(e) It must agree to comply with requirements of the Board in the solicitation of enrollment of employees and annuitants and in any advertising concerning or involving participation in the plan.

(f) It must agree to accept, subject to adjustment for error or fraud, in payment of its prepayment charges for health benefits for all employees and annuitants enrolled in its plan, the contribution of each employee and annuitant withheld from the salary or retirement allowance payable to him or her.

NOTE

Authority cited: Sections 22794 and 22796, Government Code. Reference: Section 22796, Government Code.

HISTORY

1. Amendment of subsection (f) filed 11-27-68 as an emergency; effective upon filing (Register 68, No. 45). For prior history, see Register 68, No. 29.

2. Certificate of Compliance--Sec. 11422.1, Gov. Code, filed 2-20-69 (Register 69, No. 8).

3. Amendment filed 6-15-79; designated effective 8-1-79 (Register 79, No. 24).

4. Amendment filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).

5. Amendment filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).

6. Change without regulatory effect amending Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).

§599.510. Minimum Scope and Content of Basic Health Benefits Plans.

Note • History

(a) No contract shall be made or approved for a basic health benefits plan which does not include in its coverage the following benefits. The payment schedule for such benefits must be sufficient in the judgment of the Board to meet the major share of usual, customary or reasonable charges for such services.

(1) Hospital benefits.

(A) In-hospital.

Coverage must be extended to enrolled employees, annuitants, and family members to provide benefits in the event of confinement in a hospital because of injury or sickness.

Hospital “room and board benefits” must be provided for at least the first 31 days of hospital confinement. “Miscellaneous hospital benefits” must be provided for hospital charges incurred over and above those for room and board, such as charges for the use of operating and cystoscopic rooms, anesthetic supplies, anesthesia when supplied by the hospital as a regular service and administered by a salaried employee, ordinary splints, plaster casts, and surgical dressings.

(B) Outpatient--hospital.

Coverage must be extended to enrolled employees, annuitants, and family members to provide benefits because of accidental bodily injury, surgery or emergency treatment for sickness when not admitted to a hospital or confined as a registered bed patient. Such benefits shall include but are not limited to: 1. Charges for use of operating and cystoscopic rooms, 2. Charges for anesthetic supplies and anesthesia when supplied by the hospital as a regular service and administered by a salaried employee, and 3. Charges for ordinary splints, plaster casts and surgical dressings.

(2) Surgical Benefits In and Out of the Hospital.

Coverage must be extended to enrolled employees, annuitants and family members to provide benefits in the event of surgical operations performed because of injury or sickness.

(3) In-hospital medical benefits.

Coverage must be extended to enrolled employees, annuitants, and family members to provide benefits for medical services rendered by attending physicians or physician anesthetists, other than those of a surgeon as described above, while a registered bed patient in a hospital.

(4) Outpatient medical benefits.

Coverage must be extended to enrolled employees, annuitants and family members to provide benefits for medical services rendered on an outpatient basis. Such services shall include those of a physician and surgeon for usual medical services and a physician anesthetist.

(5) Diagnostic, X-ray, and laboratory examinations benefits in and out of the hospital. Coverage must be extended to enrolled employees, annuitants, and family members and shall include those services of medical and paramedical personnel such as, but not restricted to, a pathologist, or a roentgenologist to provide for all ordinary clinical and pathological laboratory services and X-ray examinations. Such services may be rendered either by physicians or by salaried hospital or clinical personnel as appropriate.

(6) Maternity benefits. Coverage must be extended to each enrolled employee, annuitant, and covered family member to provide medical and hospital benefits for maternity care.

(7) Ambulance service benefits. Coverage must be extended to enrolled employees, annuitants, and family members to provide benefits for necessary local professional ambulance service to a hospital.

Determination of usual, customary, and reasonable charges for purposes of this subsection 599.510(a) shall take into account the Relative Value Studies of the California Medical Association with respect to any service included in such Studies.

(b) There shall be excluded from coverage set forth above:

(1) charges incurred in connection with bodily injury or disease covered by worker's compensation statutes or similar legislation.

(2) charges for which the claimant has been or is entitled to be reimbursed under any other basic hospital, surgical or medical plan not subject to these rules for which the employer shall have paid any part of the costs. Premiums or other consideration paid for the coverage not provided shall be returned to the person, state agency or contracting agency equitably entitled thereto.

(3) charges incurred during confinement in a hospital owned or operated by the United States Government, charges for services, treatments or supplies furnished by or for the United States Government or paid for by said United States Government, or charges incurred during confinement in a hospital owned or operated by a state, province, or political subdivision, unless there is an unconditional requirement to pay these charges without regard to any rights against others, contractual or otherwise.

(4) services and charges for services for which the claimant is entitled to have payment made on his or her behalf under Part A or Part B, Title XVIII of the Social Security Act.

(5) charges in accordance with such other exclusions as may be agreed to by the Board.

(1) charges incurred by or on behalf of a family member or services received by a family member during a continuous period of hospitalization which commenced before the effective date of the enrollment if eligibility to enroll including him or her in coverage of a plan derives from other than an open enrollment period; and

(2) charges incurred or services received by an employee, annuitant, or family member during a continuous period of hospitalization which commenced before the effective date of his or her enrollment if eligibility to enroll derives from an open enrollment period. Such exclusion shall no longer apply upon the 91st day of enrollment in the plan.

NOTE

Authority cited: Sections 22794 and 22796, Government Code. Reference: Sections 22796, 22850, 22853 and 22860, Government Code.

HISTORY

1. Amendment of subsection (b)(2) filed 7-31-68 as an emergency; effective upon filing (Register 68, No. 29). For prior history, see Register 66, No. 10.

2. Certificate of Compliance--Section 11422.1, Gov. Code, filed 11-27-68 (Register 68, No. 45).

3. Amendment of subsection (b)(2) filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32).

4. Amendment of subsections (a)(6) and (b)(1) filed 6-15-79; designated effective 8-1-79 (Register 79, No. 24).

5. Amendment filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).

6. Amendment filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).

7. Editorial correction of Authority cite (Register 95, No. 5).

8. Change without regulatory effect amending Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).

§599.511. Alternative Benefit Plans.

Note • History

(a) To be qualified to be approved, or contracted for, by the Board, an alternative benefit plan must comply with the Public Employees' Medical and Hospital Care Act and this subchapter.

(b) Notwithstanding any other provision of this subchapter, only employees and annuitants of contracting agencies and their family members shall be eligible to enroll in an alternative benefit plan.

(c) Notwithstanding any other provision of this subchapter, the Board may elect to offer one or more alternative benefit plans to contracting agency employers either in lieu of, or in addition to, any other health benefits plans approved or contracted for by the Board.

(d) In the event that the governing board of a contracting agency that is subject to the Public Employees' Medical and Hospital Care Act elects to provide an alternative benefit plan(s) to its employees or annuitants, it must file a resolution with the Office of Employer and Member Health Services of the Board. The resolution shall be effective on the first day of the second month following the month in which the resolution is received in the office of the Board.

NOTE

Authority cited: Sections 22794 and 22796, Government Code. Reference: Sections 22850(f)(2) and 22864(b)(3), Government Code.

HISTORY

1. New section filed 4-13-2004 as an emergency; operative 4-13-2004 (Register 2004, No. 16). A Certificate of Compliance must be transmitted to OAL by 8-11-2004 or emergency language will be repealed by operation of law on the following day. For prior history, see Register 86, No. 24.

2. Certificate of Compliance as to 4-13-2004 order transmitted to OAL 8-3-2004 and filed 9-15-2004 (Register 2004, No. 38).

3. Change without regulatory effect amending Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).

§599.512. Contributions.

Note • History

(a) Except as otherwise provided in Section 599.513 and subsection 599.512(e), the employer shall contribute toward the cost of coverage for each enrolled employee, annuitant, and family member, other than for periods during which the enrollment of an employee is continued under the provisions of subsections 599.504(b), (c), (d), (e), (f), or (g), or for a person who is eligible to enroll only on the condition that he or she pay the total cost of his or her coverage, exclusive of contribution made by the employer to the Public Employees' Contingency Reserve Fund in the amount provided by law.

(b) The contribution of each enrolled employee and annuitant toward the cost of coverage under the plan in which he or she is enrolled shall be an amount equal to the gross contribution rate established for the plan by contract, less the contribution to be made by the employer under subsection 599.512(a). The gross contribution rate shall consist of the basic contribution rate set forth in the contract.

Where enrollment is continued under Section 599.504 and the employer does not contribute under subsection 599.512 (a), the employee shall remit monthly during such continuation the gross contribution rate for his or her coverage under the plan to the carrier on or before the tenth day of the month preceding the month for which the contribution was due, or pursuant to any other arrangement agreed to by the Board. For all other enrollments the gross contribution rate required less the contribution made by the employer under subsection 599.512 (a) shall be withheld from salary or retirement allowance warrants.

For the purposes of application of this subsection to contributions due for enrollment in a prior year, the gross contribution rate and the employer's contribution under subsection 599.512 (a) shall be such a contribution rate for the year for which contribution is due.

(c) Contributions shall commence with the first salary or retirement allowance warrant payable to the employee or annuitant preceding the effective date of enrollment, and shall be made for coverage for a full period of one month. Contributions of the employer shall commence on the effective date of enrollment.

(d) Contributions shall terminate with the last contribution made immediately prior to the termination of enrollment.

(e) Contributions for an enrolled employee absent because of workers' compensation disability for which he or she has applied for temporary disability compensation, who continues enrollment under Section 599.504, shall be paid as follows:

(1) During the period of adjudication of his or her application for compensation and thereafter during such time as he or she receives temporary disability compensation which is not supplemented by sick leave or vacation, or if such supplemental payments are not sufficient to permit the deduction of his or her contribution, the employee shall pay the total cost of coverage as provided under subsection 599.512 (b).

(2) Upon establishment of entitlement to temporary disability compensation and his or her election to supplement such compensation with sick leave or vacation, the employee shall be entitled to receive payment of the employer's contribution for the period of adjudication, and deduction of the employee's contributions from payroll and payment of the employer's contributions shall continue thereafter so long as supplemental payments permit deduction of the full contribution of the employee.

NOTE

Authority cited: Sections 22794 and 22796, Government Code. Reference: Sections 22870-22899, Government Code.

HISTORY

1. Amendment of subsection (c) filed 7-5-74 as an emergency; effective upon filing (Register 74, No. 27) For prior history, see Register 72, No. 24.

2. Certificate of Compliance filed 9-6-74 (Register 74, No. 36).

3. Amendment filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).

4. Amendment of subsections (b) and (c) filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).

5. Change without regulatory effect amending Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).

§599.513. Public Employees' Contingency Reserve Fund.

Note • History

(a) For all plans approved or contracted for under this part, there shall be established a Public Employees' Contingency Reserve Fund in accordance with Section 22910 of the Public Employees' Medical and Hospital Care Act.

(b) Contribution shall be made by the employers during each calendar year to the Public Employees' Contingency Reserve Fund on account of each approved or contracted plan, in the amount authorized by law.

(c) The contributions made to the Contingency Reserve Fund in (b), above, shall not be used for administrative expense purposes. They may be utilized to defray increases in future rates, to reduce the contributions of employees and annuitants and the employers, or to increase the benefits provided by any plan to the extent that amounts in the Fund are derived from that plan, upon determination by the Board.

NOTE

Authority cited: Sections 22796, 22800 and 22831, Government Code. Reference: Sections 22870, 22885, 22890, 22901, 22910 and 22913, Government Code.

HISTORY

1. Amendment filed 7-31-68 as an emergency; effective upon filing (Register 68, No. 29). For prior history, see Register 65, No. 20.

2. Certificate of Compliance--Section 11422.1, Gov. Code, filed 11-27-68 (Register 68, No. 45).

3. Amendment of subsection (a), (b), (d)(1) and (d)(3) filed 6-15-79; designated effective 8-1-79 (Register 79, No. 24).

4. Amendment filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).

5. Amendment filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).

6. Change without regulatory effect amending subsection (a) and Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).

§599.514. Application for Approval of Major Medical Plans Offered by Employee Organizations. [Repealed]

Note • History

NOTE

Authority cited: Sections 20120 and 22775, Government Code. Reference: Sections 22775 and 22776, Government Code.

HISTORY

1. Amendment filed 7-5-74 as an emergency; effective upon filing (Register 74, No. 27).

2. Certificate of Compliance filed 9-6-74 (Register 74, No. 36).

3. Repealer of subsection (c) and renumbering of subsection (d) filed 6-15-79; designated effective 8-1-79 (Register 79, No. 24).

4. Repealer filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).

§599.515. Contracting Agency Participation.

Note • History

(a) Resolution. The resolution of the governing board of a contracting agency electing to be subject to the Public Employees' Medical and Hospital Care Act shall be filed with the Health Benefits Division of the Public Employees' Retirement System. If such resolution is filed with the Health Benefits Division on or before the tenth day of any month, the contracting agency and its employees and annuitants will become subject to the Act on the first day of the following month. The effective date of participation where the resolution is received in the Health Benefits Division after the tenth day of any month shall be at midnight of the last day of the following month. The resolution shall designate an officer or employee of the agency who shall be responsible for distribution, receipt and forwarding to the Health Benefits Division enrollment forms for its employees and annuitants, the filing of reports and the transmission of contributions.

A resolution filed with the Health Benefits Division may be revoked by the filing of a resolution of the governing board in the Health Benefits Division no less than ninety days prior to the effective date specified in the resolution electing to be subject to the Public Employees' Medical and Hospital Care Act.

(b) Reports. The agency shall file in the Health Benefits Division on or before the tenth day of each month such reports covering the employees and annuitants enrolled as of the first day of the month as the Board may require, and the total contributions due for each. The report shall be accompanied by payment of the total of such contributions for employees and the employer contributions due for annuitants of the agency enrolled under the program and the employer contribution for administrative costs and the Public Employees' Contingency Reserve Fund.

(c) Enrollment. The contracting agency shall make available to its employees and annuitants information concerning health benefit plans and procedures for enrollment and the enrollment forms prescribed by the Board. It shall cause all properly executed enrollment forms to be transmitted promptly to the Health Benefits Division.

(d) Delinquency. The Executive Officer of the Board, upon failure of a contracting agency to perform any act required by the Meyers-Geddes State Employees' Medical and Hospital Care Act or these rules, shall on behalf of the Board, make demand for performance of such act on the agency pursuant to Section 22939 of the Meyers-Geddes State Employees' Medical and Hospital Care Act. If such demand is not satisfied, the Executive Officer shall refer the matter to the Board at its next meeting.

(1) The contributions required of a contracting agency, along with contributions withheld from salaries of its employees, shall be forwarded monthly, no later than the 10th day of the month for which the contribution is due.

(2) Interest on late payments:

(A) If a public agency fails to pay contributions due within the prescribed time, interest shall be charged upon the amount due from the due date until received by the System in Sacramento.

(B) The rate of interest to be charged shall be equal to the short-term interest rate for the coverage month due.

(3) Cost assessment for late reporting:

(A) If a public agency fails to file a remittance report as required by these regulations within the time period set forth, an assessment to recover the cost of follow-up and special accounting of $25.00 for each report shall be made.

(B) If, in the opinion of the Executive Officer, such assessment is insufficient to meet the added costs because of special circumstances, he/she shall determine such costs and make an appropriate supplemental assessment.

(4) Time extension:

(A) A reasonable extension of time for filing remittance reports may be granted by the Executive Officer or designee whenever good cause exists.

(e) Termination. A contracting agency may terminate its participation under the Public Employees' Medical and Hospital Care Act by filing with the Board a resolution passed by a majority vote of its governing body. The resolution electing to terminate must be filed with the Health Benefits Division of the Public Employees' Retirement System no later than 60 days after the Board of Administration approves and announces the health plan premium rates for the following year. The termination becomes effective at the end of the current contract year. The election to terminate is irrevocable after the filing of the resolution, and a resolution electing to be subject to the Public Employees' Medical and Hospital Care Act may not be filed thereafter within five years of the termination date.

NOTE

Authority cited: Sections 20121, 22794, 22796, 22800, 22830, 22831 and 22846(a), Government Code. Reference: Sections 22901 and 22922-22939, Government Code.

HISTORY

1. Amendment of subsection (e) filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32). For prior history, see Register 75, No 12.

2. Amendment of subsections (a), (b) and (c) filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).

3. Amendment filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).

4. Amendment of subsection (e) filed 4-3-2003 as an emergency; operative 4-3-2003 (Register 2003, No. 14). A Certificate of Compliance must be transmitted to OAL by 8-1-2003 or emergency language will be repealed by operation of law on the following day.

5. Certificate of Compliance as to 4-3-2003 order transmitted to OAL 7-9-2003 and filed 8-18-2003 (Register 2003, No. 34).

6. Amendment of subsection (e) filed 8-4-2004; operative 8-4-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 32).

7. Change without regulatory effect amending subsection (d) and Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).

§599.516. Payment of Surcharges for Late Enrollment in Medicare Part B.

Note • History

(a) As used in this section and Government Code section 22831(b):

(1) “Surcharge for late enrollment in Part B of Medicare” means the Part B penalties for late enrollment, exclusive of the Part B premium and interest or penalties for the late payment of premiums. At the discretion of the Board, Part B penalties may be paid directly to the Medicare program or annuitants may be reimbursed for the costs of their Part B penalties.

(2) “Annuitants” means annuitants and their family members.

(3) “Medicare eligible annuitants” means those annuitants and their family members who (a) are enrolled in a basic health benefits plan, (b) are eligible for Part A of Medicare without cost, (c) turned 65 between January 1, 1985 and June 30, 2005, and (d) have not previously enrolled in Part B of Medicare.

(4) “Adverse selection” means that the costs of covering Medicare eligible annuitants in a particular basic plan results in higher premiums for all members of that plan.

(5) “Less costly” means one of the following:

(A) The reduction in a carrier's basic plan premium and resulting savings from moving a Medicare eligible annuitant into the carrier's Medicare plan are greater than an amount equal to the costs of that annuitant's Part B penalties and the employer's mandatory contribution for enrollment in the carrier's Medicare plan. For purposes of this section, the employer's mandatory contribution shall include all amounts that the employer would be required to pay pursuant to Government Code section 22879.

(B) In the case of a self-funded plan administered by the Board, the costs of medical and pharmaceutical claims paid from the Health Care Fund on behalf of a Medicare-eligible annuitant have been, and are projected to be, an amount greater than the Part B penalties for that annuitant and the claim costs that would be paid by the Health Care Fund if the annuitant were enrolled in the plan's Medicare supplement.

(6) “Defined class of Medicare eligible annuitants” means a specific category or group of Medicare eligible annuitants identified or established at the discretion of the Board.

(7) “Determination” means an evaluation and decision made by the Board pursuant to these regulations and Section 22831(b) as to whether (a) adverse selection due to the enrollment of Medicare eligible annuitants has impacted a basic health benefits plan contracted for or approved by the Board and (b) the payment of the Part B penalties for the Medicare eligible annuitant(s) enrolled in that basic plan and their enrollment in a Medicare health benefits plan would be less costly than continued enrollment in the basic plan. An affirmative determination shall be referred to as a determination of cost savings.

(8) “CMS” means the Centers for Medicare and Medicaid Services, the federal agency which administers the Medicare program.

(b) If the Board makes a determination of cost savings with respect to a Medicare eligible annuitant or defined class of Medicare eligible annuitants enrolled in a basic health benefits plan, the Board may seek funding for, or otherwise arrange for, payment of the Part B penalties on behalf of those annuitants.

(c) Determinations will be specific to a designated basic health benefits plan and the costs of the Part B penalties will be based on CMS Medicare eligibility data. At its discretion, the Board may make determinations hereunder on an individual basis or for a defined class of Medicare eligible annuitants. Nothing in this section shall be construed as requiring the Board to undertake or make a determination with respect to a particular basic health benefit plan, individual annuitant, or group of annuitants.

(d) Except as specifically provided herein and approved by the Board, neither the California Public Employees' Retirement System nor any employer or other entity shall have any obligation to pay Part B penalties or reimburse individual annuitants for the costs of such penalties.

(e) Unless otherwise provided by law, the California Public Employees' Retirement System shall not be financially liable for the payment of Part B penalties.

(f) Neither the employer nor any other entity which funds the payment of Part B penalties pursuant to this section shall have any obligation to continue to pay, or fund the payment of, Part B penalties on behalf of any annuitant or family member in the event that:

(1) Funding is not available for payment of Part B penalties; or

(2) The Board determines that payment of the Part B penalties and the employer's mandated contribution is no longer less costly than enrollment in a basic health benefits plan; or

(3) The annuitant or family member, once enrolled in Medicare Part B, fails to pay the Part B premiums or otherwise fails to maintain continuous coverage under Part B.

(g) A Medicare Part B Penalty Reimbursement Program is hereby established for the payment or reimbursement of the penalties for late enrollment in Medicare Part B. If the Board makes a determination of cost-savings with respect to a Medicare eligible annuitant or defined class of Medicare eligible annuitants, each annuitant shall:

(1) Enroll in the Part B Penalty Reimbursement Program.

(2) Enroll in Medicare Part B at the earliest possible date, but no later than the end of the current Part B open enrollment period or, if the open enrollment period has closed, the next Part B open enrollment.

(3) Maintain continuous enrollment in Part B of Medicare and pay all Part B premiums when due. In the event that the program elects to reimburse the program participants for the costs of the Part B penalties rather than paying those penalties directly to Medicare, the annuitant must also timely pay all Part B penalties.

(4) Enroll in a Medicare health benefits plan approved or contracted for by the Board effective as of the date that Part B coverage commences.

(h) A Medicare Part B Penalty Reimbursement Program participant who fails to maintain Medicare Part B coverage, including due to a failure to timely pay the Part B premium and all penalties that are the responsibility of the participant, will not be eligible to re-enroll in a basic plan and may be required to reimburse the Part B penalties previously paid on his or her behalf. Termination of Medicare coverage for failure to pay the Part B premiums shall not constitute an involuntary termination of Medicare benefits under section 599.502(f)(12). In the event that the annuitant later re-enrolls in Part B, he or she will not be eligible to re-enroll in the program unless it is determined that there would be cost savings. Penalties and costs associated with lapse or cancellation of, and subsequent re-enrollment in, Part B of Medicare will not be reimbursed.

(i) Any Medicare eligible annuitant who is included in a cost savings determination made by the Board and who, after adequate notice from the Board of his or her right to enroll in the Part B Penalty Program, refuses to enroll in Medicare Part B and a Medicare health benefits plan approved or contracted for by the Board, shall no longer be eligible for continued enrollment in a basic health benefits plan.

NOTE

Authority cited: Sections 22794, 22796 and 22831(b), Government Code. Reference: Section 22831(b), Government Code.

HISTORY

1. New section filed 1-15-2004 as an emergency; operative 1-15-2004 (Register 2004, No. 3). A Certificate of Compliance must be transmitted to OAL by 5-14-2004 or emergency language will be repealed by operation of law on the following day.

2. Certificate of Compliance as to 1-15-2004 order, including amendment of subsections (a)(5)(A) and (h), transmitted to OAL 5-13-2004 and filed 6-28-2004 (Register 2004, No. 27).

3. Change without regulatory effect amending subsections (a), (a)(5)(A) and (a)(7) and amending Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).

§599.517. Termination of Enrollment in Basic Health Benefits Plan for Failure to Enroll In Part A and Part B of Medicare.

Note • History

Except as otherwise provided under federal law or regulation, specified employees, annuitants and their family members who become Medicare-eligible, as defined below, may not be enrolled in a basic health benefits plan. Failure of a Medicare-eligible basic plan member to enroll in Part B of Medicare and in a Medicare Plan will result in termination of basic plan coverage.

(a) As used in this section and in Government Code section 22844:

(1) “Post-1997 Basic Health Plan Enrollees” means those annuitants and their family members who (a) have been continuously enrolled in a basic health benefits plan on or after January 1, 1998, and (b) turned 65 on or after January 1, 1998 and before January 1, 2005.

(2) “Post-2000 CSU Basic Health Plan Enrollees” means those annuitants of the California State University and their family members who (a) have been continuously enrolled in a basic health benefits plan on or after January 1, 2001, and (b) turned 65 on or after January 1, 2001 and before January 1, 2005.

(3) “Prospective Medicare Beneficiary” means an annuitant, employee or family member who is enrolled in a basic health benefits plan and, at the time of notification hereunder, is within the Medicare Initial Enrollment Period.

(4) “Medicare-Eligible” means eligible for Medicare Part A without cost and Part B.

(5) “Medicare Plan” means a Medicare supplement or Medicare-risk health benefits plan approved or contracted for by the board.

(6) “Deferral of Part B Enrollment” means deferral of Part B enrollment by a Medicare-eligible state or a contracting agency employee who, pursuant to federal law and regulations, has deferred enrollment in Part B of Medicare because he or she is actively employed and covered by a basic health benefits plan by virtue of that employment.

(b) Enrollment and continuation in a basic health benefits plan.

(1) Except as set forth below, Post-1997 Basic Health Plan Enrollees, Post-2000 CSU Basic Health Plan Enrollees, and Prospective Medicare Beneficiaries who are Medicare-eligible may not continue to be enrolled in a basic health benefits plan.

(2) A Medicare-eligible individual who applies for initial enrollment in a basic health benefits plan, or re-enrollment after a break in coverage, shall not be permitted to enroll in a basic plan notwithstanding the fact that he or she was enrolled in an employer-sponsored basic health plan prior to, or on the date of, the application for enrollment.

(3) A Medicare-eligible state or contracting agency employee who has deferred his or her enrollment in Part B, may continue to be enrolled in a basic health benefits plan until the earlier of retirement or termination of employment. Such employee must notify the Board immediately upon termination of his or her deferred status and must enroll in Part B of Medicare during his or her special enrollment period.

(1) Post-1997 Basic Health Plan Enrollees and Post-2000 CSU Basic Health Plan Enrollees. No later than December 1, 2004, the Board shall provide notice to Post-1997 Basic Health Plan Enrollees and Post-2000 CSU Basic Health Plan Enrollees of their requirement to enroll in Part B of Medicare. This notice shall provide that (a) if they are Medicare-eligible they may not remain in a basic plan, (b) if they are eligible for Part A of Medicare without cost, they must enroll in Part B of Medicare and in a Medicare Plan in order to retain health plan coverage; and (c) the failure to provide the board with satisfactory evidence of enrollment in Part B, ineligibility for Part A without cost, or deferral of Part B enrollment will result in the termination of their basic plan enrollment.

(2) Prospective Medicare Beneficiaries. Commencing four (4) months prior to a Prospective Medicare Beneficiary's 65th birth month, the Board shall provide notice of the requirement to enroll in Medicare. This notice shall inform the Prospective Medicare Beneficiary that if he or she is Medicare-eligible, he or she may not remain in a basic health benefits plan and must timely enroll in Part B of Medicare and a Medicare Plan in order to retain health plan coverage. The notice shall also inform the Prospective Medicare Beneficiary that failure to provide the board with satisfactory evidence of enrollment in Part B, ineligibility for Part A of Medicare without cost, or deferral of Part B enrollment will result in the termination of his or her basic plan enrollment.

(d) Termination of enrollment in a basic health benefits plan.

(1) On or before March 31, 2005, Post-1997 Basic Health Plan Enrollees and Post-2000 CSU Basic Health Plan Enrollees shall provide the Board with satisfactory evidence of application for enrollment in Part B of Medicare during the 2005 Medicare open enrollment period, ineligibility for enrollment in Part A of Medicare without cost, or deferral of Part B enrollment. Failure to do so will result in termination of basic plan enrollment effective April 1, 2005.

(2) On or before June 1, 2005, a Post-1997 Basic Health Plan Enrollee or a Post-2000 CSU Basic Health Plan Enrollee who applied to enroll in Part B of Medicare during the 2005 open enrollment period shall provide the Board with satisfactory evidence of enrollment in Part B of Medicare and an application for enrollment in a Medicare plan. Failure to do so will result in termination of basic plan enrollment effective July 1, 2005.

(3) The basic plan enrollment of a Prospective Medicare Beneficiary who fails to provide to the Board satisfactory evidence of enrollment in Part B of Medicare, ineligibility for Part A of Medicare without cost, or deferral of Part B enrollment by the last day of his or her birth month, will be terminated effective the first of the subsequent month.

(4) To the full extent permitted by law, the Board shall have no liability for any costs, losses or damages incurred by any person as a result of, or arising from or related to, the termination of basic health benefits plan coverage in accordance with this section.

(e) Enrollment in a Supplemental Plan.

(1) Post-1997 Basic Health Plan Enrollees, Post-2000 CSU Basic Health Plan Enrollees, and Prospective Medicare Beneficiaries who are Medicare-eligible may enroll in a Medicare Plan by submitting an application to the Board and proof of enrollment in Parts A and B of Medicare. Enrollment in the Medicare Plan shall be effective on the date Medicare coverage became effective or the first of the month following receipt of the application, whichever is later.

(2) Notwithstanding (1) above, a person whose coverage has been terminated pursuant to subsection (d) and who subsequently submits evidence of enrollment in Parts A and B of Medicare may only enroll in a Medicare Plan under the following conditions:

(A) If the application and proof of enrollment in Parts A and B of Medicare are submitted within 90 days of the date that basic plan coverage terminated, enrollment in the Medicare Plan shall be retroactive to the effective date of Medicare coverage or a date 90 days prior to the submission of evidence of Medicare enrollment, whichever is later.

(B) If the application and proof of enrollment in Parts A and B of Medicare are submitted more than 90 days after the date that basic plan coverage terminated, the effective date of enrollment shall be the first of the month following receipt of the application or, if applicable, the effective date of coverage under open enrollment.

(f) Enrollment in a basic health benefits plan after termination.

If a person whose basic plan coverage has been terminated pursuant to subsection (d) subsequently submits satisfactory written confirmation that he or she is either not eligible for Part A of Medicare without cost or has deferred enrollment in Part B of Medicare, he or she may enroll in a basic health benefits plan under the following conditions:

(1) If the documentation is received by the Board within 90 days of the date that coverage terminated, re-enrollment in a basic plan shall be retroactive to the date coverage terminated.

(2) An application for enrollment received more than 90 days after basic plan coverage has terminated may be submitted only during a CalPERS Health Benefits Open Enrollment period.

(g) Request for administrative review -- termination of enrollment in basic health benefits plan.

(1) A person who has been notified that his or her enrollment in a basic plan has, or will be, terminated pursuant to subsection (d), may request an administrative review of the termination. The filing of a request for administrative review shall not delay the termination of basic plan enrollment.

(2) A request for administrative review must be filed with the Health Branch Assistant Executive Officer within 90 days of the termination date or the date of the notice of termination, whichever is later. The request for administrative review shall be in writing, state the grounds on which it is requested, the relief that is sought, and include all supporting evidence.

(3) The Health Branch Assistant Executive Officer or his or her designee shall acknowledge the request within 15 days of receipt. The Health Branch Assistant Executive Officer or his or her designee shall review the request and may request additional documentation. Written notification of the decision shall be mailed within 60 days of receipt of all pertinent information.

(h) Request for administrative review -- effective date of Medicare Plan enrollment.

(1) A person whose enrollment in a Medicare Plan is delayed pursuant to subsection (e)(2)(B) due to failure to timely submit evidence of enrollment in Part B of Medicare, may seek administrative review of the basis for the delayed effective date. The filing of a request for administrative review shall not delay the termination of basic plan enrollment.

(2) A request for administrative review must be filed with the Health Branch Assistant Executive Officer within 90 days of the notice of the effective date of enrollment in the Medicare Plan. The request for administrative review shall be in writing, state the grounds on which it is requested, the relief that is sought, and include all supporting evidence.

(3) The Health Branch Assistant Executive Officer or his or her designee shall acknowledge the request within 15 days of receipt. The Health Branch Assistant Executive Officer or his or her designee shall review the request and may request additional information. Written notification of the decision shall be mailed within 60 days of receipt of all pertinent information.

NOTE

Authority cited: Sections 22794 and 22796, Government Code. Reference: Section 22844, Government Code.

HISTORY

1. New section filed 3-22-2004 as an emergency; operative 3-22-2004 (Register 2004, No. 13). A Certificate of Compliance must be transmitted to OAL by 7-20-2004 or emergency language will be repealed by operation of law on the following day.

2. Certificate of Compliance as to 3-22-2004 order, including amendment of section, transmitted to OAL 7-20-2004 and filed 8-31-2004 (Register 2004, No. 36).

3. Change without regulatory effect amending subsection (a) and Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).

Article 2. Prefunding Plan for Health Care Coverage for Annuitants

§599.550. Definitions.

Note • History

For purposes of this article:

(a) “Health care coverage for annuitants” means postemployment healthcare benefits and other postemployment benefits provided to terminated or retired employees and their dependents and beneficiaries. For purposes of this definition, “postemployment healthcare benefits” means medical, dental, vision, and other health-related benefits, and “other postemployment benefits” means postemployment benefits other than pension benefits, including life insurance, disability, and long-term care benefits.”

(b) “Participating employer” means an employer, as defined at Government Code section 22942, that has elected to participate in the prefunding plan and that contracts with CalPERS, which contract sets forth the terms and conditions of the participating employer's participation in the prefunding plan.

(c) “Prefunding plan” means the Annuitants' Health Care Coverage Fund that is a trust fund intended to meet the requirements of Section 115 of the Internal Revenue Code and that is established pursuant to Government Code section 22940 to provide healthcare coverage for annuitants. The prefunding plan is sometimes referred to as the California Employers' Retiree Benefit Trust or CERBT.

NOTE

Authority cited: Section 22796, Government Code. Reference: Sections 22940 and 22942, Government Code.

HISTORY

1. New article 2 (sections 599.550-599.554) and new section filed 1-26-2007; operative 1-26-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 4).

2. New section heading and amendment of subsections (b) and (c) and Note filed 3-28-2011; operative 4-27-2011 (Register 2011, No. 13).

§599.552.

Note • History

(a) The board may, in its discretion and upon terms and conditions set by the board, authorize an employer to participate in the prefunding plan.

(b) The governing body of a participating employer shall enter into a contract with the board, setting forth the terms and conditions of the employer's participation in the prefunding plan. The contract may be in the form of a resolution adopted pursuant to Section 22922.

(c) Upon approval by the board, an employer subject to the Public Employees' Medical and Hospital Care Act may file a new resolution with the board or amend an existing resolution on file with the board, to allow the employer to become a participating employer.

NOTE

Authority cited: Sections 22796 and 22922, Government Code. Reference: Sections 22922, 22940 and 22942, Government Code.

HISTORY

1. New section filed 1-26-2007; operative 1-26-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 4).

§599.553.

Note • History

(a) The terms and conditions of the contract or resolution for participation in the prefunding plan shall include, but not be limited to, the following:

(1) Disbursements from the prefunding plan;

(2) The methodology and assumptions used to calculate the actuarial accrued liability for health care coverage for annuitants;

(3) The method of payments to and disbursements from the prefunding plan;

(4) The frequency and content of reports from the participating employer to the prefunding plan;

(5) The frequency and content of reports from the prefunding plan to the participating employer;

(6) The allocation of prefunding plan investment income to the participating employer;

(7) The allocation of administrative costs and expenses of the prefunding plan to the participating employer;

(8) The circumstances and requirements for transfer of assets into or out of the prefunding plan, provided that any such transfers:

(A) must be in accordance with the terms of the contract or resolution, and

(B) must satisfy the requirements of Section 115 of the Internal Revenue Code.

(9) The board may terminate the participation of a participating employer in the prefunding plan if:

(A) a participating employer elects to terminate participation in the prefunding plan;

(B) the board finds that the participating employer has failed to satisfy the terms and conditions required by this article, by board rules or regulations, or by the contract or resolution approved by the governing body of the participating employer and filed with the board; or

(b) If participation in the prefunding plan terminates for a reason described in subdivision (a)(9)(A) or (B), then the assets attributable to the contributions by that employer shall remain in the prefunding plan for the continued payment of postemployment health care coverage for annuitants and the costs of administration, pursuant to the terms and conditions of participation established by the board and as agreed to by the employer.

(c) If participation in the prefunding plan is terminated by the board as described in subdivision (a)(9)(C), then the assets attributable to the contributions by participating employers shall be paid in the following order:

(1) The board shall retain for disbursement to annuitants an amount sufficient to pay the health care benefits to annuitants for current and future annuitants.

(2) The board shall retain for payment an amount sufficient to pay reasonable administrative costs.

(3) After the amounts described in paragraphs (1) and (2) have been retained or disbursed, the board shall pay to each participating employer in the prefunding plan on the date of termination, a pro rata share of the remaining assets in the prefunding plan. The board shall determine that pro rata share based on the ratio that the participating employer's accumulated contributions bear to the accumulated contributions of all participating employers.

NOTE

Authority cited: Sections 22796 and 22922, Government Code. Reference: Sections 22922, 22940 and 22942, Government Code.

HISTORY

1. New section filed 1-26-2007; operative 1-26-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 4).

§599.554.

Note • History

The board shall determine the amount of administrative costs and expenses of the prefunding plan to be paid to the board by each participating employer in accordance with the terms of the contract or resolution.

NOTE

Authority cited: Sections 22796 and 22922, Government Code. Reference: Sections 22922 and 22940, Government Code.

HISTORY

1. New section filed 1-26-2007; operative 1-26-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 4).

Chapter 3. Department of Personnel Administration

EDITORIAL NOTE: The Department of Personnel Administration (DPA) succeeded to and became vested with the authority of the State Personnel Board (SPB), the State Board of Control (BOC), the Department of General Services (DGS) and the Department of Finance (DOF) with respect to the nonmerit aspects of the state personnel system on May 1, 1981. (Governor's Reorganization Plan No. 1 of 1981, Codified by Statutes of 1981, Chap. 230.) Pursuant to Government Code Section 19815.4(d): “All regulations relating to personnel administration heretofore adopted pursuant to this part by the State Personnel Board, State Board of Control, Department of General Services, and the Department of Finance, and in effect on the operative date of this part, shall remain in effect and shall be fully enforceable unless and until readopted, amended, or repealed by the director [of DPA].” Further, the DPA serves as the Governor's representative for collective bargaining and other labor relations purposes under the State Employer-Employee Relations Act (California Government Code Section 3512 et seq.).

Most of the pertinent SPB, BOC, DGS and DOF regulations now administered by DPA pursuant to Government Code Section 19815.4(d) have been transferred to this chapter (Title 2, Division 1, Chapter 3); some have not yet been included herein. Citations for the sections not yet transferred are set forth in the Detailed Analysis (below) in parentheses following the section number reserved for the parallel DPA provisions which will be incorporated as appropriate at the completion of rulemaking proceedings necessitated by Government Code Sections 11340 et seq.

Subchapter 1. General Civil Service Rules

Article 1. Definitions

§599.600. Definitions.

Note • History

Unless context requires otherwise, the definitions hereinafter set forth govern the construction of these rules.

NOTE

Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 18520, Government Code.

HISTORY

1. New Subchapter 1 heading and new Article 1 (Sections 599.600-599.611) filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37). For prior history of Chapter 3, see Registers 83, No. 17 and 82, No. 42.

. CROSS REFERENCE: See Title 2, Division 1, Chapter 1, Subchapter 1, Sections 1-8.

§599.601. Act.

Note

“Act” means Part 2.6 of Division 5 of Title 2 of the Government Code of the State of California.

NOTE

Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Part 2.6 (commencing with Section 19815), Division 5, Title 2, Government Code.

§599.602. Agency.

Note

“Agency” includes “department,” “board,” “office,” “authority,” “commission,” and every other governmental unit.

NOTE

Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19820, Government Code.

§599.603. Appointing Power.

Note

NOTE

Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 18524, Government Code.

§599.604. Department.

Note

“Department” means the Department of Personnel Administration of the State of California.

NOTE

Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19815(a), Government Code.

§599.605. Employee.

Note

“Employee” includes every officer and employee subject to the Act or these regulations.

NOTE

Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19815(d), Government Code.

§599.606. Director.

Note

“Director” means the Director of the Department of Personnel Administration.

NOTE

Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19815(b), Government Code.

§599.607. Use of Month or Calendar Month.

Note

“Month” means a calendar month unless otherwise specified. In the application of Government Code Sections 19856.1, 19858.1, 19859, 19861, 19863.1, 19991.7, 19996, 19997.3 and Sections 599.737, 599.738, 599.739, 599.740, 599.746, 599.747, 599.787, 599.791 and 599.840 relating to the earning of sick leave, paid educational leave, vacation allowances, and seniority, month or calendar month shall mean the monthly pay period as prescribed by the Department of Finance.

NOTE

Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 18538.1, Government Code.

§599.608. Qualifying Monthly Pay Period.

Note • History

Except as provided in Sections 599.609 and 599.776.1(b), in the application of Government Code Sections 19143, 19849.9, 19856.1, 19858.1, 19859, 19861, 19863.1, 19997.4, 599.682, 599.683, 599.685, 599.687, 599.737, 599.738, 599.739, 599.740, 599.746, 599.747, 599.787, 599.791, 599.840 and 599.843, an employee who has 11 or more working days of service in a monthly pay period shall be considered to have a complete month, a month of service, or continuous service. In the application of Government Code Section 19837, an employee shall be considered to have a month of state service if the employee either: (1) has had 11 or more working days of service in a monthly pay period; or (2) would have had 11 or more working days of service in a monthly pay period but was laid off or on a leave of absence for the purpose of lessening the impact of an impending layoff.

Except for absences that are counted under this section, absences from state service resulting from a temporary or permanent separation for more than 11 consecutive working days which fall into two consecutive qualifying pay periods shall disqualify one of the pay periods. Absences from the payroll that may be counted as state service under this section shall be counted only at the request of the employee and shall not exceed 12 months of state service regardless of the number or combinations of absences involved.

Service or credits earned on or after January 1, 1969, shall be accumulated under the provisions of this section. Service or credits prior to that date shall be accumulated under the rules in effect on December 31, 1968, except that in the application of Government Code Section 19997.4 and Sections 599.837 and 599.843 all seniority credit shall be accumulated under the provisions of this section. In either instance, service or credit may be accumulated during appropriate absences, as described in this section, and the amount accumulated will be based on the time the employee would have worked if not absent.

NOTE

Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 18538.1 and 19997.4, Government Code.

HISTORY

1. Amendment filed 12-16-94; operative 7-1-94. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 94, No. 50).

§599.609. Qualifying Monthly Pay Period for Hourly and Daily Rate Employees.

Note

In the application of Section 599.608, hourly or daily rate employees working in a state agency in which the full-time workweek is 40 hours who earn the equivalent of 160 hours of service in a monthly pay period or accumulated pay periods shall be considered to have a complete month, a month of service, or continuous service. The amount of accumulated service required for a complete month of service shall be proportionately adjusted for work in agencies in which the full-time workweek is other than 40 hours. Hours or days worked in excess of 20 days in a month by pay period shall not be counted or accumulated. When an employee has a break in service or changes to full time, any combination of time worked which does not equal one qualifying month of full-time service shall not be accumulated or counted.

NOTE

Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 18538.1, 19997 and 19997.4, Government Code.

§599.610. Regulations.

Note

“Regulations” means the regulations of the Department of Personnel Administration.

NOTE

Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 3532, Government Code.

§599.611. Good Faith.

Note • History

NOTE

Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 19257 and 19257.5, Government Code.

HISTORY

1. Repealer filed 11-17-87; operative 12-17-87 (Register 87, No. 48).

§599.612. (Reserved)

§599.613. (Reserved)

§599.614. (Reserved)

Article 2. Traveling Expenses

§599.615. Scope.

Note • History

(a) It is the purpose of this Article to provide reimbursement for the necessary out-of-pocket expenses incurred by state officers and employees because of travel on official state business. Each state agency is charged with the responsibility of determining the necessity for, and the method of, travel, provided, however, that once such necessity has been determined, reimbursement shall be governed by these sections. It is the intent of the Department of Personnel Administration that state agencies shall not have discretion to provide reimbursement at a lower amount than contained in Department sections unless such discretion is specifically mentioned. Language of this article providing a specific time, distance, or amount shall be rigidly interpreted. Language such as “not more than” or “up to” a specified amount shall be interpreted as a rigid ceiling with departmental discretion below such ceiling.

(b) For the purpose of regulations governing claims for reimbursement an excluded employee is: an employee as defined in Section 3527(b) of the California Government Code (Ralph C. Dills Act): a nonelected officer or employee of the executive branch of government who is not a member of the civil service.

(c) For the purpose of regulations governing claims for reimbursement, a represented employee is defined in Section 3513(c) of the California Government Code (Ralph C. Dills Act).

NOTE

Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.

HISTORY

1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).

2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).

3. Change without regulatory effect amending section filed 9-11-91 pursuant to section 100, title 1, California Code of Regulations (Register 91, No. 51).

§599.615.1. Scope--Excluded Employees.

Note • History

(a) It is the purpose of this Article to provide and define reimbursement for the actual and necessary out-of-pocket expenses incurred by state officers, employees, and agents because of travel on official state business. Each state agency may determine the time and method of travel, location and lodging. Each State agency shall determine the necessity for travel and that such travel represents the best interest of the State. Once the necessity and method of travel, location and lodging have been determined, reimbursement shall be governed by these sections. The signature of the officer approving travel and payment is certification that the approving party has authorized the travel, that the expenses were incurred in order to conduct official state business and that the items claimed are appropriate and in keeping with these rules. State agencies shall not have discretion to provide reimbursement at a lower amount unless such discretion is specifically authorized by rule. Unless otherwise specified, receipts are required for each item of expense of $25.00 or more.

(b) For the purpose of regulations governing claims for reimbursement an excluded employee is: an employee as defined in Section 3527(b) of the California Government Code (Ralph C. Dills Act): a non-elected officer or employee of the executive branch of government who is not a member of the civil service.

NOTE

Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.

HISTORY

1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).

§599.616. Definitions.

Note • History

For the purposes of this Article, the following definitions will apply:

(a) Headquarters. Headquarters shall be established for each state officer and employee and shall be defined as the place where the officer or employee spends the largest portion of his/her regular workdays or working time, or the place to which he/she returns on completion of special assignments, or as the Department of Personnel Administration may define in special situations.

(1) Where an office building or similar definite place constitutes the employee's headquarters, no per diem expenses shall be allowed at any location within 25 miles of said headquarters as determined by the normal commute distance.

(2) Where the major portion of an employee's working time is spent within a specifically assigned or limited geographical area, such as a patrol area or beat where the same routes are traveled frequently and routinely on one-day trips, no per diem expenses shall be allowed at any location within 25 miles from any point in this assigned area as determined by the normal commute distance.

In order to insure equity in special cases, agency heads may disregard this subsection and authorize individual claims based on subsection (1) of this rule.

(3) In cases where adherence to the 25-mile limitation creates an unusual and unavoidable hardship to the officer or employee, exceptions may be granted by the Department of Personnel Administration.

(4) Employees on travel status for less than 24 hours may claim subsistence expenses incurred before or after the regularly scheduled work day in accordance with Section 599.619(a) or the applicable provisions of a Memorandum of Understanding, as appropriate, provided the departure time or return time exceeds the regularly scheduled work day by one hour.

(b) Residence. A place of primary dwelling shall be designated for each state officer and employee. A primary dwelling shall be defined as the actual dwelling place of the employee which bears the most logical relationship to the employee's headquarters and shall be determined without regard to any other legal or mailing address. However, if an employee is temporarily required to dwell away from his/her primary dwelling place due to official travel away from headquarters, and said primary dwelling is either inhabited by his/her dependents or is maintained by the employee at a net monthly expense in excess of $200, such dwelling place may be continued as the employee's designated primary dwelling.

(1) No reimbursement for per diem or other subsistence expenses shall be allowed on the premises of an employee's primary dwelling.

(2) An employee shall have only one dwelling at which travel expenses are prohibited.

(3) When an employee maintains more than one dwelling, meeting the definition of residence set forth in Section 599.616(b) and the employee is required to officially travel to the location of the secondary dwelling, he/she may claim the non-commercial subsistence allowance rates defined in Section 599.619(c) or 599.621(c)(1) as appropriate.

(1) Per Diem Expenses. Per diem expenses consist of the charges and attendant expenses for meals and lodging and all charges for personal expenses incurred while on travel status.

(2) Business Expenses. Business expenses consist of the charges for business phone calls and telegrams; emergency clothing, equipment or supply purchases; and all other charges necessary to the completion of official business. Any emergency purchase shall be explained, and if over $25 must be approved by the department head, deputy, or chief administrative officer.

(d) Protective Services. A member of the California State Police assigned as provided by Government Code Section 14613, or a member of the California Highway Patrol assigned to supplement State Police capabilities under Section 14613, may claim subsistence allowance for in-state travel as follows:

(1) If expenses actually incurred by the employee while traveling with the protected individual exceed the per diem allowance authorized for in-state travel, the employee may elect to claim the subsistence allowance authorized by Section 599.619(d) or 599.621(d) as appropriate.

(2) Any expense claim submitted under (1), must contain a certification by the Chief of the California State Police naming the individual be--

ing protected and verifying that the travel expenses were incurred while the claimant was assigned to protect said individual.

(3) Claims submitted under this section shall not be subject to the limitations of Section 599.616(a).

NOTE

Authority cited: Sections 19815.4(d), 19816, 19820(a) and 19849.5, Government Code. Reference: Sections 11030 and 14613, Government Code.

HISTORY

1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).

2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).

§599.616.1. Definitions--Excluded Employees.

Note • History

For the purposes of this Article, the following definitions will apply:

(a) Headquarters. Headquarters shall be established by the appointing power for each state officer and employee and shall be defined as the place where the officer or employee spends the largest portion of his/her regular workdays or working time, or the place to which he/she returns upon completion of special assignments, or as the Department of Personnel Administration may define in special situations.

(1) Where an office building or similar definite place constitutes the employee's headquarters, no per diem expenses shall be allowed at any location within 50 miles of said headquarters as determined by the normal commute distance.

(2) Where the major portion of an employee's working time is spent within a specifically assigned or limited geographical area, such as a patrol area or beat where the same routes are traveled frequently and routinely on one-day trips, no per-diem expenses shall be allowed at any location within 50 miles from any point in this assigned area as determined by the normal commute distance.

In order to insure equity in special cases, agency heads may disregard this subsection and authorize individual claims based on subsection (1) of this rule.

(3) In cases where adherence to the 50-mile limitation creates an unusual and unavoidable hardship to the officer or employee, exceptions may be granted by the appointing power.

(4) Employees on travel status for less than 24 hours may claim subsistence expenses incurred before, during, or after the regularly scheduled workday in accordance with Section 599.619(a).

(1) No reimbursement for per diem or other subsistence expenses shall be allowed on the premises of an employee's primary dwelling.

(2) An employee shall have only one dwelling at which travel expenses are prohibited.

(3) When an employee maintains more than one dwelling, meeting the definition of residence set forth in Section 599.616.1(b) and the employee is required to officially travel to the location of the secondary dwelling, he/she may claim reimbursement for actual expenses incurred for meals and incidentals as defined in Section 599.619(a) and in accordance with the rates and timeframes stated therein for short-term travel, or as defined in Section 599.619.1(b) for meals while on a long-term assignment.

(1) Meals and Lodging incurred as a result of business travel away from headquarters in order to conduct State business

(2) Transportation expenses incurred in order to conduct State business

(d) Business Expenses. Business expenses consist of the charges for business phone calls and telegrams; emergency clothing, equipment or supply purchases; and all other charges necessary to the completion of official business. Any emergency purchase shall be explained, and if over $25 must be approved by the department head, deputy, or chief administrative officer.

(e) Protective Services. A member of the California Highway Patrol assigned as provided by Government Code Section 14615 may claim subsistence allowance for in-state travel as follows:

(1) If expenses are actually incurred by the employee as a result of traveling with the protected individual exceed the maximum meal and lodging rates authorized in 599.619 for in-state travel, the employee may claim their actual expenses by providing receipts.

(2) Any expense claim submitted under (1), must contain a certification by the Commissioner of the California Highway Patrol naming the individual being protected and verifying that the travel expenses were incurred while the claimant was assigned to protect said individual.

(3) Claims submitted under this section shall not be subject to the limitations of Section 599.616.1(a).

(f) Long Term Assignment. Any assignment of 31 days or more to a given location other than headquarters. A Long Term Assignments is typically given for a project status job that requires the extended presence of an employee for a period in excess of 31 days but is not considered permanent due to the temporary nature of the assignment, the appointment, or scheduled completion date of the project. The employee's return home for weekends or incidental short term travel to another location does not break the continuity of a long term assignment.

NOTE

Authority cited: Sections 19815.4(d), 19816, 19820(a) and 19849.5, Government Code. Reference: Sections 11030 and 14613, Government Code.

HISTORY

1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).

2. Amendment of subsections (a)(4) and (b)(3) filed 10-28-99; operative 11-2-99. Submitted to OAL for printing only (Register 99, No. 51). At the request of DPA pursuant to Government Code section 3539.5, OAL is directing the printing of this regulation in the CCR. Title 1, CCR, section 6(b)(2)(F)1 defines “print only” regulations as “regulations adopted pursuant to the requirements of the APA, but which are expressly exempted by statute from OAL review . . . .” (Emphasis added.) In complying with DPA's request, OAL makes no determination concerning whether or not DPA has met the statutory requirements for adoption of regulations set forth in Government Code sections 11346-11347.3, including but not limited to public notice and comment. See 1998 OAL Determination No. 40 (Department of Personnel Administration, 96-008, December 9, 1998), California Regulatory Notice Register 99, No. 3-Z, January 15, 1999, p. 139, at p. 145; typewritten version, p. 18.

3. Amendment of subsection (b)(3) filed 10-1-2001; operative 10-1-2001. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 2001, No. 46).

§599.619. Reimbursement for Meals and Lodging--Excluded Employees.

Note • History

The employee on travel status shall be reimbursed actual expenses for receipted lodging, and for meals and incidentals as provided in this section, unless directed to travel under the provisions of 599.624.1. Lodging and/or meals provided by the state or included in hotel expenses or conference fees, or in transportation costs such as airline tickets, or otherwise provided shall not be claimed for reimbursement. Snacks and continental breakfasts, such as rolls, juice and coffee, are not considered to be meals. The circumstances of travel will determine the rate allowed.

(a) Short-term Travel. Reimbursement for short-term subsistence will be authorized only when the traveler incurs expenses arising from the use of reasonable, moderately priced commercial lodging and meal establishments, such as hotels, motels, bed and breakfast inns, campgrounds, restaurants, cafes, diners, etc. that cater to the general public. Employees who stay with friends or relatives may claim meals only in accordance with the rates and time frames set forth below. Lodging receipts are required. The short-term rate is intended for trips of such duration that weekly or monthly rates are not obtainable and will be discontinued after the 30th consecutive day assigned to one location unless an extension has been previously documented and approved by the appointing power. In extending short term travel, the appointing power shall consider the expected remaining length of the travel assignment.

(1) In computing reimbursement for continuous short term travel of more than 24 hours and less than 31 consecutive days, the employee will be reimbursed for actual costs up to the maximum allowed for each meal, incidental, and lodging expense for each complete 24 hours of travel, beginning with the traveler's times of departure and return, as follows.

(A) On the first day of travel on a trip of 24 hours or more:

Trip begins at or before 6am: breakfast may be claimed on the first day

Trip begins at or before 11am: lunch may be claimed on the first day

Trip begins at or before 5pm: dinner may be claimed on the first day

(B) On the fractional day of travel at the end of a trip of more than 24 hours:

Trip ends at or after 8am: breakfast may be claimed

Trip ends at or after 2pm: lunch may be claimed

Trip ends at or after 7pm: dinner may be claimed

If the fractional day includes an overnight stay, receipt lodging may be claimed. No meal or lodging expense may be claimed or reimbursed more than once on any given date or during any 24 hour period.

Meals:

Breakfast $ 6.00

Lunch $ 10.00

Dinner $18.00

Incidentals $ 6.00

Receipts for meals must be maintained by the employee as substantiation that the amount claimed was not in excess of the amount of actual expense. The term incidentals includes but is not limited to expenses for laundry, cleaning and pressing of clothing, and fees and tips for services, such as for porters and baggage carriers. It does not include taxicab fares, lodging taxes or the costs of telegrams or telephone calls.

Lodging:

Statewide, with receipts Actual up to $84.00 plus tax

When employees are required to do

business and obtain lodging in the

Counties of Los Angeles and San

Diego Actual lodging up to $110.00 plus tax

When employees are required to do business and obtain lodging in the Counties of Alameda, San Francisco, San Mateo and Santa Clara, actual lodging up to $140 plus tax.

If lodging receipts are not submitted, reimbursement will be for actual expenses for meals/incidentals only at the rates and time frames set forth in this section.

(2) In computing reimbursement for continuous travel of less than 24 hours, actual expenses, up to the maximums in (C) above, will be reimbursed for breakfast and/or dinner and/or lodging in accordance with the following timeframes:

Travel begins at or before 6 a.m. and ends at or after 9 a.m: Breakfast may be claimed.

Travel begins at or before 4 p.m. and ends at or after 7 p.m: Dinner may be claimed.

If the trip of less than 24 hours includes an overnight stay, receipted lodging may be claimed.

No lunch or incidentals may be reimbursed on travel of less than 24 hours.

(b) Long-term Travel. Reimbursement for long-term meals and receipted lodging will be authorized when the traveler incurs expenses in one location comparable to those arising from the use of commercial establishments catering to the long-term visitor. Meals and/or lodging provided by the state shall not be claimed for reimbursement. With approval of the appointing power and upon meeting the criteria in (3) below, an employee on long-term field assignment who is living at the long term location may claim either:

(1) $24.00 for meals and incidentals and up to $24.00 for receipted lodging for travel of 12 hours up to 24 hours; either $24.00 for meals or up to $24.00 for receipted lodging for travel less than 12 hours, or

(2) Reimbursement for actual individual expense, substantiated by receipts, for lodging, utility gas and electricity, up to a maximum of $1130 per calendar month while on the long term assignment, and $10.00 for meals and incidentals, without receipts, for each period of 12 to 24 hours; $5.00 for meals and incidentals for periods of less than 12 hours at the long term location

(3) To claim expenses under either (1) or (2) above the employee must meet the following criteria:

(A) the employee continues to maintain a permanent residence at the primary headquarters and

(B) The permanent residence is occupied by employee's dependents, or

(D) The employee must submit substantiating evidence of these conditions to the appointing power in accordance with its requirements.

(4) Employees who do not meet the criteria to claim (1) or (2) above may claim $12.00 for meals and incidentals and $12.00 for receipted lodging for every 12 to 24 hours at the long term location; $12 for meals OR $12 receipted lodging for periods of less than 12 hours at the long term location.

(5) With approval of the appointing power, the reimbursement of long term lodging may continue when the employee is away from the long term location on short term business travel or other absences from that location as approved by the appointing authority.

(c) Out-of-State Travel. Out-of-state travel is any travel outside the State of California for the purpose of conducting business outside the State of California. For short-term out-of-state travel, employees will be reimbursed for actual lodging expenses, supported by a receipt, and will be reimbursed for meal and incidental expenses as defined in Section 599.619(a). Failure to furnish lodging receipts will limit reimbursement to meals only at the rates specified in (a). Long-term out-of-state travel will be reimbursed according to Section 599.619(c).

(d) Out-of-Country Travel. For short-term out-of-country travel, employees will be reimbursed for actual lodging expenses, supported by a receipt, and will be reimbursed for actual meal and incidental expenses subject to maximum rates in accordance with the published Government meal and incidental rates for foreign travel for the dates of travel. Failure to furnish lodging receipts will limit reimbursement to meals only in accordance with the published Government meal and incidental rates for foreign travel. Long-term out-of-country travel will be reimbursed according to Section 599.619(a) through (c).

(e) Exceptions to reimburse in excess of the maximum lodging rate cited in (a) of this rule may be granted by the Appointing Power only in an emergency, or when there is no lodging available at the State maximum rate or when it is cost effective. The Appointing Power shall document the reasons for each exception and shall keep this documentation on file for three calendar years from the date of the exception.

NOTE

Authority cited: Sections 3539.5, 19815.4(d), 19816 and 19820, Government Code. Reference: Sections 3527(b) and 11030, Government Code.

HISTORY

1. New chapter 3 (sections 599.619-599.745, not consecutive) filed 10-12-82 as an emergency; effective upon filing (Register 82, No. 42). A Certificate of Compliance must be transmitted to OAL within 180 days or emergency language will be repealed on 4-10-83.

2. Certificate of Compliance including amendments transmitted to OAL 3-15-83 and filed 4-19-83 (Register 83, No. 17).

3. Redesignation of sections 599.619-599.632, not consecutive, to article 2 filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37).

4. Amendment filed by the Department of Personnel Administration with the Secretary of State on 8-20-84; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 85, No. 18).

5. Amendment filed by the Department of Personnel Administration with the Secretary of State on 5-23-86; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 86, No. 26).

6. Amendment filed by the Department of Personnel Administration with the Secretary of State on 7-8-87; operative 7-8-87. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 87, No. 32).

7. Amendment filed by the Department of Personnel Administration with the Secretary of State on 6-27-88 pursuant to Government Code section 3539.5. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 88, No. 31).

8. Amendment of subsection (a)(4) filed by the Department of Personnel Administration with the Secretary of State on 9-1-88; operative 10-1-88. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 88, No. 41).

9. Amendment of subsections (a)(1) and (a)(5) filed by the Department of Personnel Administration with the Secretary of State on 6-30-89; operative 6-30-89. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 89, No. 33).

10. Amendment of subsections (a)(2)-(a)(4) filed by the Department of Personnel Administration with the Secretary of State on 10-20-89; operative 10-20-89. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 89, No. 49).

11. Change without regulatory effect amending section filed 9-10-91 (corrected text filed 9-11-91) pursuant to section 100, title 1, California Code of Regulations (Register 91, No. 51).

12. Amendment filed 12-31-91 with Secretary of State by Department of Personnel Administration; operative 12-31-91. Submitted to OAL for printing only pursuant to Government Code 3539.5 (Register 92, No. 12).

13. Editorial correction of printing errors in subsections (a)(1) and (a)(2)(A) (Register 92, No. 34).

14. Amendment of section heading and section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).

15. Amendment filed 7-1-97; operative 7-1-97 pursuant to Government Code section 11343.4(d). Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 97, No. 27).

16. Amendment of subsection (a)(1)(C) filed 10-28-99; operative 11-2-99. Submitted to OAL for printing only (Register 99, No. 51). At the request of DPA pursuant to Government Code section 3539.5, OAL is directing the printing of this regulation in the CCR. Title 1, CCR, section 6(b)(2)(F)1 defines “print only” regulations as “regulations adopted pursuant to the requirements of the APA, but which are expressly exempted by statute from OAL review . . . .” (Emphasis added.) In complying with DPA's request, OAL makes no determination concerning whether or not DPA has met the statutory requirements for adoption of regulations set forth in Government Code sections 11346-11347.3, including but not limited to public notice and comment. See 1998 OAL Determination No. 40 (Department of Personnel Administration, 96-008, December 9, 1998), California Regulatory Notice Register 99, No. 3-Z, January 15, 1999, p. 139, at p. 145; typewritten version, p. 18.

17. Amendment of subsection (a)(1)(C) filed 10-1-2001; operative 10-1-2001. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 2001, No. 46).

§599.620. Subsistence Allowance--Nonrepresented Employees, California State University and Colleges.

Note • History

NOTE

Authority cited: Sections 19815.4 and 19820, Government Code. Reference: Sections 11030 and 13920, Government Code; and Title 2, California Administrative Code, Div. 2, Ch. 1, Section 706.

HISTORY

1. New section filed 10-15-82 as an emergency; effective upon filing (Register 82, No. 42). A Certificate of Compliance must be transmitted to OAL within 180 days or emergency language will be repealed on 4-13-83.

2. Repealed by operation of Government Code Section 11346.1(g) (Register 83, No. 37).

§599.621. Subsistence Allowance--Represented Employees.

Note • History

A represented employee is defined in Section 599.615(c) of these regulations.

The represented employee on travel status shall be reimbursed for lodging, meals and incidental expenses. The circumstances of travel will determine the rate allowed.

(a) Short-term subsistence allowance will be authorized in accordance with the applicable provisions of a Memorandum of Understanding when the traveler incurs expenses comparable to those arising from the use of good, moderately priced establishments, catering to the general public. The short-term allowance is intended for trips of such duration that weekly or monthly rates are not obtainable and will be discontinued after the 30th consecutive day in one location unless a continuation has been previously approved by the appointing power. After 30 consecutive days in one location, represented employees may claim the long-term allowance.

(1) Incidental allowance as defined in the applicable provisions of a Memorandum of Understanding may be claimed for each 24-hour period.

(b) Long-term subsistence allowance will be authorized when the traveler incurs expenses in one location comparable to those arising from the use of establishments catering to the long-term visitor.

(1) A represented employee on long-term field assignment who maintains a permanent residence elsewhere while living at the job location may claim the full long-term allowance if one of the following exists:

(A) Permanent residence is occupied by the represented employee's dependents, or

(B) Permanent residence is maintained at a net expense to the represented employee exceeding $200 per month.

To qualify for this allowance, a represented employee must submit substantiating evidence of either condition to the appointing power in accordance with its requirements.

(2) A represented employee on long-term field assignment who does not maintain a permanent residence away from the job site will be authorized a long-term subsistence allowance of one-half the long-term allowance per day rounded to the nearest dollar.

(3) Represented employees may claim the appropriate long-term subsistence allowance (60% of the appropriate short-term allowance plus the incidental allowance) for every 24-hour period on travel status. Allowances for partial day travel status will be as follows:

(A) Less than 12 hours, one-half the appropriate allowance rounded to the nearest dollar.

(B) 12 to 24 hours, the full allowance.

(c) A non-commercial subsistence allowance will be authorized when the traveler incurs expenses comparable to those arising from the use of non-commercial subsistence facilities such as, but not limited to, house trailers or camping equipment.

(1) Represented employees may claim the non-commercial subsistence allowance (60% of the appropriate short-term allowance plus the incidental allowance) for every 24-hour period on travel status. Allowance for partial day travel status will be as follows:

(A) Less than 12 hours, one-half the appropriate allowance rounded to the nearest dollar.

(B) 12 to 24 hours, the full allowance.

(d) Out-of-State Subsistence Allowance. For out-of-state travel, represented employees will be reimbursed actual lodging expenses, supported by a voucher, and will be reimbursed for meal and incidental expenses in accordance with the applicable provisions of a Memorandum of Understanding.

(e) Out-of-Country Subsistence Allowance. When represented employees are authorized to travel outside the United States, and maintain a permanent U.S. residence occupied by the represented employee's dependents or maintained at a net monthly expense exceeding $200, reimbursement of subsistence expenses may exceed established rates only upon prior approval of the specific rates by the Department of Personnel Administration.

NOTE

Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Sections 3513(c), 11030 and 11032, Government Code.

HISTORY

1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).

2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).

3. Change without regulatory effect of subsection (b) filed 7-7-86; effective thirtieth day thereafter (Register 86, No. 28).

4. Change without regulatory effect amending section filed 9-11-91 pursuant to section 100, title 1, California Code of Regulations (Register 91, No. 52).

§599.622. Meal Expenses--Represented Employees.

Note • History

A represented employee is defined in Section 599.621.

(a) Overtime Meals. When a represented employee is required to work overtime, he/she may receive an overtime meal allowance for actual expenses, supported by a voucher, (unless superseded by a Memorandum of Understanding), not to exceed the maximums prescribed in the applicable provisions of a Memorandum of Understanding for lunches. To be eligible, the represented employee must be required to report to work at least two hours prior to or be required to remain at least two hours past his/her regularly scheduled work day.

When required to work for extended periods of time, the represented employee may be reimbursed for actual meal expenses not to exceed the maximums prescribed for lunches in the applicable provisions of a Memorandum of Understanding for each additional six-hour period. No more than three overtime meal allowances may be claimed during any 24-hour period. The meal time itself shall not be included in the computation of overtime for purposes of this allowance.

Agencies operating facilities for feeding officers, employees, and official guests may instead furnish an official guest meal to a represented employee. Agencies shall maintain a record of all guest meals furnished for this purpose. A represented employee may not claim reimbursement for an overtime meal or be furnished a meal free of charge if claiming per diem.

(b) Business-Related Meals. When it is necessary for represented employees to conduct official state business during a meal, they may be reimbursed for actual meal expenses substantiated by a voucher up to the

maximums prescribed in the applicable provisions of a Memorandum of Understanding.

To claim reimbursement for a business-related meal, the circumstances surrounding the meal must be beyond the control of the represented employee and it must be impractical to complete the business during normal working hours. Represented employees may not claim reimbursement for a business-related meal if they are also claiming per diem.

Claims for meal expenses where business is incidental to the meal or the attendance of the represented employee is primarily for public or community relations are specifically prohibited.

This section is intended to allow an agency to reimburse represented employees for meal expenses in the limited number of instances when they are required to incur such expenses in connection with the conduct of official state business.

(c) Represented employees of the Department of Forestry engaged in emergency fire suppression activities may be reimbursed for meal expenses without regard to any limitations. Emergency fire suppression activities are defined as actions taken under emergency conditions to extinguish uncontrolled fires which threaten to destroy life, property, or resources.

NOTE

Authority cited: Sections 19815.4(d), 19816, 19820 and 19822, Government Code. Reference: Sections 11030 and 19849.4, Government Code.

HISTORY

1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).

2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).

§599.623. Miscellaneous Meal Expenses--Excluded Employees.

Note • History

(a) Overtime Meals. When an employee assigned to work week group 2 is required to work overtime, he/she may receive an overtime meal reimbursement of up to $8.00. To be eligible, the excluded employee must be required to report to work at least two hours prior to or remain at least two hours past his/her regularly scheduled work day, or work a minimum of 10 hours on a regularly scheduled day off or holiday.

When required to work for extended periods of time, the excluded employee may be reimbursed for meal expenses prescribed herein for each additional six-hours of overtime worked. No more than three overtime meal allowances may be claimed during any 24-hour period. The meal time itself shall not be included in the computation of overtime for purposes of this section.

In lieu of overtime meal reimbursement, agencies operating food service facilities may furnish an overtime meal to an excluded employee. Agencies shall maintain a record of all meals furnished for this purpose. An excluded employee may not claim reimbursement for an overtime meal or be furnished a meal free of charge if claiming travel meals.

Meals for Extended Arduous Work. On those rare occasions when an employee who is in a work week group other than work week group 2 would be required to physically or mentally work 10 hours or more (not including any breaks for meals) for an extended period of time, the employee, with approval of the appointing authority, may claim the actual cost of an arduous work meal up to $8.00. Such meals should only be approved when it is clear that the work schedule is consistently in excess of a normal full time schedule. Occasional extra hours worked, consistent with the nature of an other than Work Week Group 2 work schedule, do not meet the criteria for Extended Arduous Work Meals.

(b) Business-Related Meals. This section is intended to allow an agency to reimburse employees for meal expenses in the limited number of instances where they are required to incur such expenses in connection with the conduct of official state business with a person or persons from outside state government.

When it is necessary for an excluded employee to conduct official state business during a meal, he/she may be reimbursed for actual meal expenses, supported by a receipt, up to the maximums prescribed in Section 599.619(a)(1). Claims must include the establishment, the persons in attendance, the business conducted and the reason why the business had to be conducted during the meal period.

Business meals are not reimbursable when departments call meetings with their own and/or other department employees to conduct state business.

(1) To claim reimbursement for a business-related meal, the circumstances surrounding the meal must be beyond the control of the excluded employee and it must be impractical to complete the business during normal working hours, such as:

(A) to conduct state business with a person or persons from outside state service when availability of the person or persons is limited and it is imperative that business is conducted during the meal period, or

(B) to attend a board or commission meeting where attendance is mandatory and there is no adjournment during the meal period.

(2) Claims for meal expenses where business is incidental to the meal or the attendance of the excluded employee is primarily for public or community relations are specifically prohibited.

(c) Meals of Appointees. Members of non-salaried boards, commissions, and duly constituted advisory committees may be reimbursed for actual expenses up to the maximums prescribed in Section 599.619(a) when attending board, commission, and committee meetings. The restrictions of Section 599.616.1 do not apply. They may not claim this if they are also claiming subsistence allowance while on travel status.

While on travel status other than attending board, commission or committee meetings, appointees may be reimbursed for expenses prescribed in Section 599.619.

(d) Excluded employees of the Department of Forestry engaged in emergency fire suppression activities may be reimbursed for actual meal expenses without regard to mileage and time frame limitations to the extent that circumstances reasonably require such an exception. Emergency fire suppression activities are defined as actions taken under emergency conditions to extinguish uncontrolled fires which threaten to destroy life, property, or resources.

(e) Agencies operating facilities for feeding officers, employees and official guests may furnish an official guest meal to an employee. Agencies shall maintain a record of all guest meals furnished for this purpose. An employee may not claim reimbursement for a travel or overtime meal that has been provided as a guest meal.

NOTE

Authority cited: Sections 3539.5, 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.

HISTORY

1. Repealer and new section filed by Department of Personnel Administration with the Secretary of State on 9-9-85; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 85, No. 41).

2. Correction of History 1. (Register 86, No. 28).

3. Amendment filed by Department of Personnel Administration with the Secretary of State on 6-27-88 pursuant to Government Code section 3539.5. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 88, No. 31).

4. Amendment filed 12-31-91 with Secretary of State by Department of Personnel Administration; operative 12-31-91. Submitted to OAL for printing only pursuant to Government Code 3539.5 (Register 92, No. 12).

5. Amendment of section heading and section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).

6. Amendment of subsection (c) filed 10-28-99; operative 11-2-99. Submitted to OAL for printing only (Register 99, No. 51). At the request of DPA pursuant to Government Code section 3539.5, OAL is directing the printing of this regulation in the CCR. Title 1, CCR, section 6(b)(2)(F)1 defines “print only” regulations as “regulations adopted pursuant to the requirements of the APA, but which are expressly exempted by statute from OAL review . . . .” (Emphasis added.) In complying with DPA's request, OAL makes no determination concerning whether or not DPA has met the statutory requirements for adoption of regulations set forth in Government Code sections 11346-11347.3, including but not limited to public notice and comment. See 1998 OAL Determination No. 40 (Department of Personnel Administration, 96-008, December 9, 1998), California Regulatory Notice Register 99, No. 3-Z, January 15, 1999, p. 139, at p. 145; typewritten version, p. 18.

§599.624. Contracting for Subsistence Expenses.

Note • History

Agreements may be entered into with restaurants, hotels, and lodging houses for the furnishing of subsistence to groups of state employees when such method of handling is advantageous to the State. When such agreements are entered into, the vendor may receive payment either from the group leader or by billing the State on a regular itemized invoice.

(a) Group leaders who pay subsistence expenses for other personnel may claim reimbursement by submitting a vendor's invoice and a list of names of the employees whose expenses were paid.

(b) Members of a group who have some portion of their subsistence expenses paid by the group leader may claim reimbursement for the remainder of their actual and necessary subsistence expenses in accordance with Section 599.619(a) or the applicable provisions of a Memorandum of Understanding as appropriate for any subsistence not provided.

(c) The total payment under any such agreement shall not exceed the aggregate of the subsistence allowances otherwise claimable by the participating employees.

NOTE

Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.

HISTORY

1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).

2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).

3. Editorial correction of first sentence (Register 95, No. 37).

§599.624.1. Contracting for Meals and/or Lodging Expenses--Excluded Employees.

Note • History

Appointing authorities may enter into agreements with restaurants, hotels, and lodging establishments for the furnishing of subsistence to state employees at or below the rates provided in these rules when such method of handling is advantageous to the State. When such agreements are entered into, the vendor may receive payment either from the employee, a group leader or by billing the State on a regular itemized invoice.

(a) Group leaders who pay subsistence expenses for other personnel may claim reimbursement by submitting a vendor's invoice and a list of names of the employees whose expenses were paid.

(b) Individuals who have specific meal and/or lodging expenses paid by the group leader or department may not claim reimbursement for those meal and lodging expenses per 599.619.

(c) The total payment under any such agreement shall not exceed the aggregate of the subsistence allowances otherwise claimable by the participating employees.

(d) No individual's reimbursement shall exceed the rate(s) negotiated under the provisions of this section or the maximum subsistence rates provided in these rules, whichever is less.

NOTE

Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.

HISTORY

1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).

§599.625. Receipts or Vouchers.

Note • History

(a) Receipts or vouchers shall be submitted for every item of expense except as follows:

(1) Railroad and bus fares, where the fares are available in published tariffs, and travel is wholly within the State of California. However, vouchers must be submitted in the case of cash purchases of airplane travel, Pullman accommodations, or extra fare train, travel by any common carrier outside of the State except taxi or hotel bus fares.

(2) Subsistence allowances, except when specified.

(3) Street car, ferry fares, bridge and road tolls.

(4) Long distance telephone or telegraph charges, if date, place and party called are shown, unless the telephone call is in excess of $2.50 in which case vouchers or other supporting evidence shall be provided.

(5) Taxi or hotel bus fares, when necessary upon official business.

(6) All legal expenditures of $1 or less.

(7) Parking fees of $3.50 or less for any one continuous period of parking.

(b) In cases where receipts cannot be obtained or have been lost, a statement to that effect shall be made in the expense account and the reason given. In the absence of satisfactory explanation the amount involved shall not be allowed.

NOTE

Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.

HISTORY

1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).

2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).

§599.625.1. Receipts--Excluded Employees.

Note • History

An excluded employee is defined in Section 599.615(b).

(a) Receipts are required for each item of expense of $25.00 or more. As specified in this rule, receipts are also required for items of expense of less than $25.00. Receipts shall be submitted with claims for every item of business expenses incurred while away from headquarters conducting state business except for actual expenses as follows:

(1) Railroad and bus fares of less than $25.00 when travel is wholly within the State of California.

(2) Street car, ferry fares, bridge and road tolls, local rapid transit system, taxi, shuttle or hotel bus fares, and parking fees of $10.00 or less for each continuous period of parking or each item of transportation expense noted in this item.

(3) Telephone, telegraph, fax or other business charges related to State business of $5.00 or less.

(b) In the absence of a receipt, reimbursement shall be limited to the non-receipted amount above.

(c) Regardless of the exceptions in (a) above, the authority approving the claim and/or the appointing power may require any additional verification, or information, he/she deems necessary to determine that an expense was actually and reasonably incurred. In the absence of satisfactory explanation no reimbursement shall be allowed. If there is reason to believe that inappropriate non-receipted expenses have been claimed, receipts may be required for each item of expense listed above for future travel.

NOTE

Authority cited: Sections 3539.5, 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.

HISTORY

1. New section filed by Department of Personnel Administration with the Secretary of State on 9-1-88; operative 10-1-88. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 88, No. 41).

2. Amendment filed 12-31-91 with Secretary of State by Department of Personnel Administration; operative 12-31-91. Submitted to OAL for printing only pursuant to Government Code 3539.5 (Register 92, No. 12).

3. Amendment of section heading and section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).

§599.626. Transportation Expenses.

Note • History

(a) Transportation expenses consist of the charges for commercial carrier fares; private car mileage allowances; emergency repairs to state cars; overnight and day parking of state or privately-owned cars; bridge and road tolls; necessary taxi, bus, or streetcar fares; and all other charges essential to the transport from and to the official headquarters.

(c) In any case in which reimbursement for expenses of transportation by private automobile or privately-owned airplane is claimed, the license number of the automobile or the civilian airplane license number as well as the name of each state officer, employee, or board, commission, or authority member transported on the trip shall be stated. As such reimbursement is for the expense of use of the automobile or airplane regardless of the number of persons transported, no reimbursement for such transportation shall be allowed any passenger in any automobile or airplane operated by another such officer, employee or member.

In the determination of fares or mileage paid for transportation by airplane, the point of origin or return shall be an appropriate airport facility serving the area of the employee's headquarters or residence, whichever results in the lesser distance or amount.

(d) Expenses arising from travel between home or garage and headquarters shall not be allowed. When a trip is commenced or terminated at claimant's home, the distance traveled shall be computed from either his/her headquarters or home, whichever shall result in the lesser distance.

Exceptions to the above are:

(1) Where such expenses are incurred by call back for overtime work necessitating more than one trip to the work location on a normal work day or by reason of any call back on an employee's normal day off.

(2) When the headquarters of a permanent, full time employee is located 24 or more kilometers (15 or more road miles) one way from the nearest residential area with available housing, the appointing power may authorize payment of expenses incurred by an employee in the use of a privately owned vehicle.

(A) The authorizing agency must obtain prior approval from the Department of Personnel Administration with regard to the location of the nearest residential area with available housing and amount of mileage to be paid.

(B) Reimbursement will be at the rate provided in Section 599.631(b) or the applicable provisions of a Memorandum of Understanding, as appropriate, for distance driven and authorized in accordance with this rule and being in excess of 48 kilometers (30 miles) round trip.

(C) The term “available housing” as used in this subsection is intended to relate primarily to the quantity of housing available and not to its quality or cost.

(D) Distance will be computed from a location within the selected nearest residential area to the employee's work headquarters by the most direct road route and not the actual miles driven.

(E) If an employee's residence is not located in the designated residential area, but is more than 48 kilometers (30 miles) round trip from his/her remote location headquarters, he/she may be reimbursed for travel from his/her residence or from the selected location within the designated residential area, whichever is less.

(F) Payments will be authorized only if the appointing power has determined that the employee cannot participate in a department sponsored car or van pool.

(G) An employee whose headquarters is designated as remote and who lives in the designated residential area who is required to report to a worksite other than headquarters for a particular day, and who is required to use his/her own vehicle shall receive payment for the round trip from the designated residential area to the worksite.

(H) An employee whose headquarters is designated as remote and who lives less than 24 kilometers (15 miles) from headquarters, who is required to report to a worksite other than headquarters for a particular day, and who is required to use his/her own vehicle shall receive payment for the round trip from his/her own residence to the worksite or his/her headquarters to the worksite, whichever is less.

(I) An employee whose headquarters is designated as remote, who does not live in the designated area but lives more than 24 kilometers (15 miles) from his/her headquarters, who is required to report to a worksite other than headquarters for a particular day and who is required to use his/her own vehicle shall receive payment for the actual round-trip distance by the most direct route, not to exceed:

1. The distance from the designated residential area to the worksite, or

2. The distance from the employee's headquarters to the worksite, whichever is greater.

(3) When travel to or from a common carrier commences or terminates one hour before or one hour after the regularly scheduled work day or on a regularly scheduled day off, distance may be computed from the employee's residence in accordance with Section 599.631(c) or the applicable provisions of a Memorandum of Understanding as appropriate.

(e) When an employee's regular work assignment requires him/her to rotate among two or more posts or work stations at different geographic locations within a metropolitan area either to protect state property or state personnel and he/she is instructed to report directly to the designated post for a full shift, distance from his/her home to the designated post and return shall be limited to that which exceeds the round trip distance from his/her home to his/her designated headquarters, and shall be computed at the rate set forth under Section 599.631(b) or in the applicable provisions of a Memorandum of Understanding as appropriate. For the purpose of determining the correct distance to be allowed in these situations, headquarters shall be a designated single geographic location or address regardless of whether the employee spends a major or significant portion of his/her working time there.

(f) No reimbursement will be allowed for transportation expense when the employee uses a privately-owned motorcycle or motor-driven cycle in the conduct of official state business.

NOTE

Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.

HISTORY

1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).

2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).

§599.626.1. Transportation Expenses--Excluded Employees.

Note • History

(a) Transportation expenses consist of the charges for commercial carrier fares; private care mileage allowances; emergency repairs to state cars; overnight and day parking of state or privately-owned cars; bridge and road tolls; necessary taxi, bus, or streetcar fares; and all other charges essential to the transport from and to the official headquarters while on authorized state business.

(b) Reimbursement will be made only for the method of transportation which is in the best interest of the State, considering both direct expense as well as the officer's or employee's time. Provided the mode of transportation selected does not conflict with the needs of the agency, the officer or employee may use a more expensive form of transportation and be reimbursed at the amount required for the least expensive mode of travel that is in the best interest of the state. Both modes of transportation will be shown on the travel claim with reference to this section. A cost comparison shall be completed and attached to the claim. Cost comparisons shall include only the least costly methods of transport for those expenses actually being substituted, and shall include only the expenses of traveling from one location to another. Transportation expense at the travel work location will be reimbursed based on the actual business transportation expenses incurred while at the travel location.

(c) Expenses arising from travel between home or garage and headquarters shall not be allowed regardless of the employee's normal mode of transportation. When a trip is commenced or terminated at claimant's home, the distance traveled shall be computed from either his/her headquarters or home, whichever shall result in the lesser distance.

Exceptions to the above are:

(1) Where such expenses are incurred by call back to work necessitating more than one trip to the work location on a normal work day or by reason of any call back or pre-scheduled work on an employee's normal day off.

(2) When travel to or from a common carrier commences or terminates one hour before or one hour after the regularly scheduled work day or on a regularly scheduled day off, distance may be computed from the employee's residence in accordance with Section 599.631.

(3) When the criteria in 599.626(d)(2) for remote headquarters are met. This reimbursement is allowed only with the advance written approval of the Department of Personnel Administration.

(d) When an employee's regular work assignment requires him/her to report to or rotate among two or more posts or work stations at different geographic locations and he/she is instructed to report to a designated post, the reimbursable distance from his/her home to the designated post and return shall be limited to that which exceeds the round trip distance from his/her home to his/her designated headquarters. Reimbursement shall be computed at the rate set forth under Section 599.631.

(e) No reimbursement will be allowed for transportation expense when the employee uses a privately-owned motorcycle or motor-driven cycle in the conduct of state business.

NOTE

Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.

HISTORY

1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).

2. Amendment of subsection (c)(3) and (d) filed 10-28-99; operative 11-2-99. Submitted to OAL for printing only (Register 99, No. 51). At the request of DPA pursuant to Government Code section 3539.5, OAL is directing the printing of this regulation in the CCR. Title 1, CCR, section 6(b)(2)(F)1 defines “print only” regulations as “regulations adopted pursuant to the requirements of the APA, but which are expressly exempted by statute from OAL review . . . .” (Emphasis added.) In complying with DPA's request, OAL makes no determination concerning whether or not DPA has met the statutory requirements for adoption of regulations set forth in Government Code sections 11346-11347.3, including but not limited to public notice and comment. See 1998 OAL Determination No. 40 (Department of Personnel Administration, 96-008, December 9, 1998), California Regulatory Notice Register 99, No. 3-Z, January 15, 1999, p. 139, at p. 145; typewritten version, p. 18.

§599.627. Special Transportation.

Note • History

(a) Where it is necessary to hire special conveyances, except automobiles, a full explanation, stating the facts constituting the necessity, shall accompany the expense claim.

(b) Commercial Automobile Rental.

(1) Reimbursement will be for actual and necessary costs of such rental when substantiated by a voucher. Where it is necessary to pay extra charges or premium rental rates for air conditioning, convertible bodystyle, expensive, or other luxury items, a full explanation shall accompany the expense claim.

(2) Reimbursement will not be made for a damage waiver. Reimbursement will be made to the officer or employee for any loss necessarily sustained by him/her by reason of his/her not having purchased such waiver.

(c) Where a privately owned bicycle is used in the conduct of official state business, the employee will be allowed to claim 4 cents per 1.6 kilometers (mile).

NOTE

Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code, Reference: Section 11030, Government Code.

HISTORY

1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).

2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).

§599.627.1. Special Transportation--Excluded Employees.

Note • History

(a) Where it is authorized and necessary to hire special conveyances, except automobiles, a full explanation, stating the facts constituting the necessity, shall accompany the expense claim.

(b) Commercial Automobile Rental.

(1) Reimbursement will be for actual and necessary costs of such rental when substantiated by a receipt. Where it is necessary to pay extra charges or premium rental rates for a larger vehicle or one that is specially equipped, a full explanation shall accompany the expense claim. Reimbursement of the additional expenses shall be subject to approval by the appointing power.

(2) Reimbursement will not be made for a damage waiver. Reimbursement will be made to the officer or employee for any loss necessarily sustained by him/her not having purchased such waiver.

(c) Where a privately owned bicycle is used in the conduct of official state business, the employee will be allowed to claim 4 cents per mile.

NOTE

Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.

HISTORY

1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).

§599.628. Transportation by Aircraft.

Note • History

(a) Scheduled Airline. Claims for transportation by scheduled airline shall be allowed at the lowest fare available in conformity with the regular published tariffs for scheduled airlines in effect on the date the flight originated. Claims for reimbursement of higher fares or extra charges for transportation by scheduled airline may be allowed if accompanied by a full explanation stating the facts constituting the official necessity.

(b) Privately-Owned Aircraft. A claim of an employee for transportation by privately-owned aircraft shall be allowed where he/she has obtained prior approval of the use of this form of transportation from his/her department. If an employee is to act as pilot, he/she must satisfy the requirements of the Insurance Officer, Department of General Services, as to liability insurance coverage. The Insurance Officer shall file approved authorizations for such allowance with the State Controller.

(1) Except as provided in subsection (e), reimbursement for use of the employee's privately-owned aircraft shall be made at the rate of 28 cents per statute mile, or in accordance with the applicable provisions of a Memorandum of Understanding.

(A) Distance shall be computed on the basis of shortest air route from origin to destination, using airways whenever possible. Distance shown on claim shall be clearly marked “Air Distance.”

(B) When the trip is limited solely to state business and the “Air Distance” cannot accurately be computed from origin to destination, the department director may authorize reimbursement for the actual cost of renting a plane.

(2) Reimbursement for use of a rented aircraft will be for actual and necessary costs of such rental when substantiated by voucher.

(A) Reimbursement will be authorized only for the size and type aircraft necessary to complete the assignment.

(3) When substantiated by a voucher, reimbursement will be made for actual and necessary expenses for landing and parking fees in connection with the use of the aircraft. Reimbursement will not be allowed for storage or parking fees at the location where the privately-owned aircraft is normally stored.

(4) If an employee is to act as pilot and carry passengers he/she must, in addition to Federal Aviation Administration Regulations, have previously logged as a licensed private pilot in command of an aircraft at least 250 hours of actual flight. In addition, the employee pilot must have logged, as a pilot in command of an aircraft, at least 40 hours of actual flight within the preceding 12 months. Any employee pilot who has carried or intends to carry passengers may be required to present his/her log book substantiating that he/she meets the requirements. Passenger shall be defined as any person other than the pilot traveling in the aircraft. An employee pilot who carries a passenger but fails to meet the above qualifications shall not be reimbursed for transportation expense.

(c) Payment of Fare. Payment for transportation by aircraft may be made by (1) cash, (2) credit card, or (3) ticket order. When payment is made by cash, the travel expense claim must be accompanied by the traveler's flight coupon, in accordance with Section 599.625(a)(1). If no flight coupon was issued, as may be the case with chartered or private aircraft, a formal receipt must be submitted. If payment was made by credit card or by ticket order, this should be noted on the travel expense claim.

(d) Air Travel Insurance. Any state agency may insure its officers and employees against injury or death arising from aircraft accidents incurred while flying on state business in other than regularly scheduled passenger aircraft, subject to the following conditions:

(1) Insurance shall be provided only to those employees who are directd to fly to fulfill their work requirements. Insurance coverage shall not be provided when the use of a privately-owned aircraft is for point-to-point transportation and is a voluntary response from the employee, even though such use may be advantageous to the State.

(2) Application for insurance shall be submitted to, and the insurance procured by, the Department of General Services.

(3) Except as provided in subsection (4) below, the maximum limit of such insurance shall be $15,000 in the case of death or dismemberment for each officer and employee.

(4) For nonrepresented employees, as defined in Section 599.619, the maximum limit for air travel insurance shall be $50,000 in the case of death or dismemberment for each officer and employee.

(e) For nonrepresented employees reimbursement for use of the employee's privately-owned aircraft shall be made at the rate of 50 cents per statute mile.

NOTE

Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Sections 11030 and 11030.5, Government Code.

HISTORY

1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).

2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).

3. Amendment filed by the Department of Personnel Administration with the Secretary of State on 8-20-84; effective upon filing. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 85, No. 18).

4. Amendment of subsection (e) filed by the Department of Personnel Administration with the Secretary of State on 7-8-87; operative on 7-8-87. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 87, No. 32).

§599.628.1. Transportation by Aircraft--Excluded Employees.

Note • History

In the determination of fare or mileage reimbursement for transportation by airplane, the point of origin and return shall be an appropriate airport facility serving the area of the employee's residence or headquarters, whichever is most advantageous for the State.

(a) Scheduled Airline. Reimbursement of expenses for transportation by scheduled airline shall be at the current contract rate; except that when the employee's actual airfare is lower, the lower amount shall be reimbursed. Claims for reimbursement of higher fares or extra charges for transportation by scheduled airline may be allowed if accompanied by a full explanation stating the facts constituting the official necessity, and approved by the appointing power.

(1) certificate of current insurance in an amount of not less than $50,000 per person liability.

(2) certificate of current insurance in an amount of not less than $1,000,000 liability per incident.

(3) Reimbursement for the use of the employee's privately-owned aircraft shall be made at the rate of 50 cents per statute mile. Claims for reimbursement for privately-owned aircraft expenses must include the civilian airplane license number and the name of each state officer; employee; or board, commission, or authority member transported on the trip. No reimbursement of transportation expenses will be allowed any employee while a passenger in any airplane operated by another officer, employee or member.

(A) Distance shall be computed on the basis of shortest air route from origin to destination, using airways whenever possible. Distance shown on claim shall be clearly marked “Air Distance.”

(4) Reimbursement for use of a rented aircraft will be for actual and necessary costs of such rental when substantiated by a receipt.

(A) Reimbursement will be authorized only for the size and type aircraft necessary to complete the assignment.

(B) When substantiated by a receipt, reimbursement will be made for actual and necessary expenses for landing and parking fees in connection with the use of the aircraft. Reimbursement will not be allowed for storage or parking fees at the location where the privately-owned aircraft is normally stored.

(6) If an employee is to act as pilot and carry passengers he/she must, in addition to Federal Aviation Administration Regulations, have previously logged as a certified pilot, at least 250 hours of actual flight as pilot in command of an aircraft. In addition, the employee pilot must have logged, as a pilot in command of an aircraft, at least 40 hours of actual flight within the preceding 12 months.

Any employee pilot who has carried or intends to carry passengers may be required to present his/her log book substantiating that he/she meets the requirements. Passenger shall be defined as any person other than the pilot traveling in the aircraft. An employee pilot who carries a passenger but fails to meet the above qualifications shall not be reimbursed for transportation expense.

(d) Air Travel Insurance. Any state agency may insure that its officers and employees against injury or death arising from aircraft accidents incurred while flying on state business in other than regularly scheduled passenger aircraft, subject to the following conditions:

(1) Insurance shall be provided only to those employees who are directed to fly to fulfill their work requirements. Insurance coverage shall not be provided when use of a privately-owned aircraft is for point-to-point transportation and is a voluntary response from the employee, even though such use may be advantageous to the State.

(2) Application for insurance shall be submitted to, and the insurance procured by, the Department of General Services.

(3) Except as provided in subsection (4) below, the maximum limit of such insurance shall be $15,000 in the case of death or dismemberment for each officer and employee.

(4) For excluded employees, as defined in Section 599.619.1, the maximum limit for air travel insurance shall be $50,000 in the case of death or dismemberment for each officer and employee.

NOTE

Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Sections 11030 and 11030.5, Government Code.

HISTORY

1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).

§599.629. Railroad Transportation.

Note • History

(a) No more than actual fare on any transportation service, in accordance with the latest tariffs at the time the trip was made, shall be allowed. Special rates and round-trip rates shall be used whenever possible.

(b) Reimbursement for roomette Pullman accommodations will be allowed. Where it is necessary to use Pullman accommodations more expensive than a roomette, a full explanation stating the facts constituting the official necessity shall accompany the expense account together with a receipted voucher.

(c) Unused portions of railroad and sleeping car tickets are subject to refunds and all steps necessary to secure refunds on such tickets shall be taken.

(d) Any unusual delay or a deviation from the shortest, usually travelled route shall be explained unless connected with return trip out-of-state deportation travel authorized by the Department of Mental Health or the Department of the Youth Authority.

(e) In connection with return trip out-of-state deportation travel authorized by the Department of Mental Health or the Department of the Youth Authority, reimbursement for subsistence and transportation expenses shall be made on the basis of shortest usually travelled routes, conventional train time, first class fare, and lower standard Pullman rates as certified to by a railroad passenger agent.

(f) Meals incurred while on overnight train travel will be reimbursed in accordance with Section 599.619(a) or the applicable provisions of a Memorandum of Understanding as appropriate.

(g) Tickets for rail transportation or Pullman accommodations may be purchased (1) by the individual, (2) by credit card, or (3) ticket order. If purchased by credit card, or by ticket order this fact should be noted on the individual's expense claim.

NOTE

Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.

HISTORY

1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).

2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).

§599.629.1. Railroad Transportation--Excluded Employees.

Note • History

(b) Reimbursement for roomette or Pullman accommodations will be allowed. Where it is necessary to use Pullman accommodations more expensive than a roomette, a full explanation stating the facts constituting the official necessity shall accompany the expense account together with a receipt.

(c) Unused portions of railroad and sleeping car tickets are subject to refunds and all steps necessary to secure funds on such tickets shall be taken.

(d) Any unusual delay or a deviation from the shortest, usually travelled route shall be explained.

(e) Any expenses related to deportation will be reimbursed in accordance with Federal Immigration and Naturalization Service rules.

(f) Meals incurred while on overnight train travel will be reimbursed in accordance with Section 599.619.

(g) Tickets for rail transportation or Pullman accommodations may be purchased by the individual, by credit card, or ticket order. If purchased by credit card or by ticket order, this fact should be noted on the individual's expense claim.

NOTE

Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.

HISTORY

1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).

§599.630. Transportation by Automobile--Represented Employees.

Note • History

A represented employee is defined in Section 599.621.

(a) When the represented employee is authorized to use a privately owned automobile even though a state automobile is available, the rate as defined in the applicable provisions of a Memorandum of Understanding will be allowed.

(b) When the represented employee uses a privately owned automobile because the agency has determined that: (1) a state automobile is not available; or (2) it is more advantageous economically to the State for the employee to use his/her own automobile, even though a state automobile is available, the represented employees may claim up to 20.5 cents per 1.6 kilometers (mile) without certification and up to 25 cents per 1.6 kilometers (mile) with certification as defined in the applicable provisions of a Memorandum of Understanding. Even though a state automobile may in fact be on hand, it may not be available to the represented employee because it is reserved for other purposes or because it is more advantageous economically to the State for the represented employee to use his/her own automobile, or because use of a state automobile is unreasonable considering all circumstances in a particular situation. In determining economic advantage of state versus private automobile, a supervisor will include the following in his/her consideration.

(1) Distance to be traveled and duration of trip, as these affect direct costs.

(2) Location of the represented employee's residence, regular workplace, destination, and location of available state automobiles; as these factors affect employee time and distance traveled.

The Department of Personnel Administration may establish appropriate controls over payment of this allowance by a state agency when the Department reasonably believes that proper control has not been exercised by the agency.

(c) When the represented employee's use of a privately owned automobile is authorized for travel to or from a common carrier terminal, and the automobile is not parked at the terminal during the period of absence, a rate of 37 cents up to 50 cents per 1.6 kilometers (mile) as defined in the applicable provisions of a Memorandum of Understanding may be claimed while the employee occupies the vehicle for the distance between the terminal and his/her residence or headquarters, whichever is less, except if the employee commences or terminates travel one hour before or one hour after his/her regularly scheduled work day, or on a regularly scheduled day off, mileage may be computed from his/her residence.

Claims exceeding 41 cents per 1.6 kilometers (mile) must be certified in accordance with Section 599.630(b).

(d) All ferry, bridge, or toll road charges will be allowed.

(e) All necessary parking charges while on state business will be allowed for:

(1) Day parking on trips away from the headquarters office and employee residence.

(2) Overnight public parking on trips away from the headquarters and employee residence cities, except that parking should not be claimed if expense-free overnight parking is available.

(3) Day parking adjacent to headquarters office, but only if the employee had other reimbursable private car expenses for the same day. Represented employees may not prorate weekly or monthly parking fees.

(f) Gasoline and routine car repair expenses will not be allowed.

(g) The mileage reimbursement rates include the cost of maintaining liability insurance at the minimum amount prescribed by law and collision insurance sufficient to cover the reasonable value of the vehicle, less a standard deductible. When a privately owned vehicle operated by represented employee is damaged by collision or is otherwise accidentally damaged, reasonable reimbursement for repair will be allowed if:

(1) The damage occurred while the vehicle was used on official state business by permission or authorization of the employing agency; and

(2) The vehicle was damaged through no fault of the represented employee; and

(3) The amount claimed is an actual loss to the represented employee, and is not recoverable directly from or through the insurance coverage of any party involved in the accident; and

(4) The loss claimed does not result from a decision of a represented employee not to maintain collision coverage; and

(5) The claim is process in accordance with the procedures prescribed by the Department of General Services.

(h) Specialized Vehicles. Represented employees with a physical disability who must operate a motor vehicle on official state business and who operate only specially equipped or modified vehicles may claim up to 31 cents per 1.6 kilometers (mile) with certification in accordance with Section 599.630(b) of these regulations. Supervisors approving these claims must determine the employees's need for the use of such vehicles.

NOTE

Authority cited: Sections 19815.4(d), 19815, 19820, Government Code. Reference: Section 11030, Government Code.

HISTORY

1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).

2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).

§599.631. Transportation by Privately Owned Automobile--Excluded Employees.

Note • History

(a) Where the employee is authorized to use a privately owned automobile on official state business the reimbursement rate shall be 34 cents per mile. Claims for reimbursement for private vehicle expenses must include the vehicle license number and the name of each state officer, employee or board, commission or authority member transported on the trip. No reimbursement of transportation expense shall be allowed any passenger in any vehicle operated by another state officer, employee or member.

(1) Expenses arising from travel between home and headquarters or garage shall not be allowed, except as provided in 599.626(d)(2) or 599.626.1(c), regardless of the employee's normal mode of transportation.

(2) When a trip is commenced or terminated at a claimant's home on a regularly scheduled work day, the distance traveled shall be computed from either his/her residence or headquarters, whichever shall result in the lesser distance except as provided in 599.626.1(c).

(3) However, if the employee commences or terminates travel on a regularly scheduled day off, mileage may be computed from his/her residence.

(b) Where the employee's use of a privately owned automobile is authorized for travel to or from a common carrier terminal, and the automobile is not parked at the terminal during the period of travel, the employee may claim double the number of miles between the terminal and the employee's headquarters or residence, whichever is less, at a rate as defined in Section 599.631(a), while the employee occupies the automobile for the distance between the terminal and his/her residence or headquarters. If the employee commences or terminates travel one hour before or after his/her regularly scheduled work day, or on a regularly scheduled day off, mileage may be computed from his/her residence.

(d) All necessary parking charges while on state business will be allowed, with any required receipts, for:

(1) Day parking on trips away from the headquarters office and excluded employee's primary residence.

(2) Overnight public parking on trips away from the headquarters and excluded employee's primary residence, except that parking shall not be claimed if expense-free overnight parking is available.

(3) Day parking adjacent to either a headquarters office, a temporary job site or training site, but only if the excluded employee had other reimbursable private or state automobile expenses for the same day. An employee may not prorate weekly or monthly parking fees.

(e) Gasoline, maintenance and automobile repair expenses will not be allowed.

(f) The mileage reimbursement rates include the cost of maintaining liability insurance at the minimum amount prescribed by a law and collision insurance sufficient to cover the reasonable value of the automobile, less a deductible. When a privately owned automobile operated by state officer, agent or excluded employee is damaged by collision or is otherwise accidentally damaged, reimbursement for repair or the deductible to a maximum of $500.00 will be allowed if:

(1) The damage occurred while the automobile was used on official state business by permission or authorization of the employing agency; and

(2) The automobile was damaged through no fault of the state officer, agent or excluded employee; and

(3) The amount claimed is an actual loss to the state officer, agent or excluded employee, and is not recoverable directly from or through the insurance coverage of any party involved in the accident; and

(4) The loss claimed does not result from a decision of a state officer, agent or excluded employee not to maintain collision coverage; and

(5) The claim is processed in accordance with the procedures prescribed by the Department of Personnel Administration.

(g) Specialized Vehicles. An employee with a physical disability who must operate a motor vehicle on official state business and who can operate only specially equipped or modified vehicles may claim a rate of 34 cents per mile without certification and up to 37 cents per mile with certification. Where travel is authorized to and from a common carrier terminal, as specified in Section 599.631(b) the employee may compute the mileage as defined in Section 599.631(b). Supervisors approving these claims must determine the employee's need for the use of such vehicles.

NOTE

Authority cited: Sections 3539.5, 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.

HISTORY

1. Amendment of subsections (a)-(c) and (h) filed by the Department of Personnel Administration with the Secretary of State on 8-20-84; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 85, No. 18).

2. Amendment filed by the Department of Personnel Administration with the Secretary of State on 7-8-87; operative 7-8-87. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 87, No. 32).

3. Amendment filed by the Department of Personnel Administration with the Secretary of State on 6-27-88 pursuant to Government Code section 3539.5. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 88, No. 31).

4. Amendment filed by the Department of Personnel Administration with the Secretary of State on 6-30-89; operative 6-30-89. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 89, No. 33).

5. Amendment filed 12-31-91 with Secretary of State by Department of Personnel Administration; operative 12-31-91. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 92, No. 12).

6. Amendment of section heading and section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).

7. Amendment of subsection (a)(1) filed 1-10-96; operative 1-10-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 96, No. 38).

8. Editorial correction of subsection (g) (Register 96, No. 38).

9. Amendment of subsection (a) filed 7-1-97; operative 7-1-97 pursuant to Government Code section 11343.4(d). Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 97, No. 27).

10. Amendment of subsections (a), (a)(2) and (g) filed 10-28-99; operative 11-2-99. Submitted to OAL for printing only (Register 99, No. 51). At the request of DPA pursuant to Government Code section 3539.5, OAL is directing the printing of this regulation in the CCR. Title 1, CCR, section 6(b)(2)(F)1 defines “print only” regulations as “regulations adopted pursuant to the requirements of the APA, but which are expressly exempted by statute from OAL review . . . .” (Emphasis added.) In complying with DPA's request, OAL makes no determination concerning whether or not DPA has met the statutory requirements for adoption of regulations set forth in Government Code sections 11346-11347.3, including but not limited to public notice and comment. See 1998 OAL Determination No. 40 (Department of Personnel Administration, 96-008, December 9, 1998), California Regulatory Notice Register 99, No. 3-Z, January 15, 1999, p. 139, at p. 145; typewritten version, p. 18.

11. Amendment of subsections (a) and (g) filed 10-1-2001; operative 10-1-2001. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 2001, No. 46).

§599.632. Transportation by Automobile-- Nonrepresented Employees, California State University and Colleges.

Note • History

NOTE

Authority cited: Sections 19815.4 and 19820, Government Code. Reference: Sections 11030 and 13920, Government Code; and Title 2, California Administrative Code, Div. 2, Ch. 1, Section 714.

HISTORY

2. Repealed by operation of Government Code Section 11346.1(g) (Register 83, No. 37).

§599.633. Travel Allowances While on Sick Leave, Vacation or Compensating Time Off (CTO).

Note • History

(a) When a state officer or employee is granted sick leave while away from his/her headquarters for purposes of state business, such officer or employee may claim reimbursement for travel expenses in accordance with the allowances prescribed by these rules during such sick leave, provided the allowances for travel expenses shall not be authorized for a period exceeding three days. The time limitation prescribed by this section may be exceeded in unusual cases approved by the Department of Personnel Administration.

(b) When a state officer or employee is authorized time off on vacation or CTO while away from his/her headquarters on state business, reimbursement for subsistence allowance during such vacation or CTO may not be claimed. The provisions of this section may be waived by an agency for employees claiming other than short-term allowances who are (1) authorized time off on CTO, or (2) employees in seasonal agricultural work authorized time off on vacation.

NOTE

Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.

HISTORY

1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).

2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).

§599.633.1. Travel Reimbursements While on Sick Leave, Vacation, Other Paid Leave, or Compensating Time Off (CTO)--Excluded Employees.

Note • History

(a) When a state officer or employee is granted sick leave while away from his/her headquarters for purposes of state business, the appointing authority may approve such office or employee to claim reimbursement for actual travel expenses not to exceed the maximums prescribed by these rules during such sick leave, for a period not to exceed three days. This time limitation may be extended in unusual cases approved by the appointing power, when either the employee is unable to travel, or when it is more economical for the state to maintain the employee on sick leave and travel status in order to complete the assignment.

(b) When a state officer or employee is authorized time off for vacation or CTO while away from his/her headquarters on state business, reimbursement for travel expenses during such vacation or CTO shall not be paid.

(c) The appointing power may make exceptions for employees on long term assignments for long term lodging expenses only that are incurred at the long term location and will continue during the employee's absence.

NOTE

Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.

HISTORY

1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).

§599.634. Expenses of Applicants Who Are Called for Interview.

Note • History

Reimbursement may be allowed for expenses of professional and technically trained applicants for state employment who are called for employment interviews.

(a) Written approval of the Department of Personnel Administration must be obtained before the applicant is called for the interview.

(b) The applicant must have been called for the interview regarding a position in a classification for which it has been certified that such expenditure is necessary in order to recruit qualified persons needed by the State. Certification must be made by the appointing power and the Department of Personnel Administration.

(c) Reimbursement of actual transportation expenses will be allowed in an amount not to exceed ground transportation to and from the nearest airport and one round trip air coach fare, plus applicable tax, between the place from which the applicant was called and the place where the interview is held. However, if an applicant is called from outside the boundaries of the United States, reimbursement shall apply only to that portion of the fare for travel within the United States.

(d) The Department of Personnel Administration may authorize the reimbursement of all or part of lodging and meal expenses in the place where the interview is held, when the appointing power has demonstrated the following:

(1) Reasonable efforts were made to coordinate applicant's transportation and interview schedule;

(2) Available transportation options were explored with regard to timeliness and convenience;

(3) Resulting interview and transportation arrangements reasonably required the applicant to incur the cost for which reimbursement is being claimed.

Reimbursement for these expenses shall be limited to the time period that is directly related to the candidate's scheduled interview. Reimbursement shall not be authorized for time spent at the interview location resulting from the candidate's decision to remain for personal reasons.

Meals and lodging expenses will be reimbursed at a rate not to exceed those noted in Section 599.619.

NOTE

Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Sections 11030 and 19842, Government Code.

HISTORY

1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).

2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).

3. Amendment filed 2-20-86; effective thirtieth day thereafter (Register 86, No. 8).

4. Editorial correction of paragraph following subsection (d)(3) (Register 95, No. 37).

§599.635. Attending Conventions, Conferences, or Business Meetings.

Note • History

(a) All regulations governing short-term travel and subsistence allowances will apply except employees may be reimbursed for actual subsistence expenses, supported by voucher, when the convention or conference is planned and arranged by a non-state agency if such expenses are beyond the control of the employees.

(b) Registration fees will be allowed except for conventions or conferences called by a state agency for the dissemination of information to its own employees. Reimbursement for registration fees exceeding $50 must be approved by the department head or delegated representative.

(c) Where more than two individuals (officers or employees) from the same department are attending the same convention or conference, each claim must be approved by the department head or delegated representative. This requirement does not apply to a convention or conference called by a state department for purposes of instruction or dissemination of information to its own officers or employees.

(d) Exceptions to these regulations may be approved in advance by the Department of Personnel Administration.

NOTE

Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.

HISTORY

1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).

2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).

3. Editorial correction of History 1 (Register 95, No. 37).

§599.635.1. Attending Conferences, Conventions--Excluded Employees.

Note • History

For the purposes of this rule a conference or convention is a meeting, with a formal agenda, of persons to discuss or consult on specific work related subjects with the purpose of exchanging views, providing lecture or dialogue or providing or gaining skills and/or information for the good of the State.

(a) Under the direction of the Appointing Power, a State Sponsored Conference or Convention is planned and arranged by one or more state agencies for the benefit of the state and/or outside parties for the purpose of conducting State business. Specifically excluded is any event, meeting or gathering initiated by a state agency for dissemination of information to its own departmental employees. Costs and reimbursements for State Sponsored conferences are subject to the exclusions in (c) below. Approval for any individual employee's attendance or participation in a State Sponsored conference is at the sole discretion of the appointing authority. In planning and contracting any State sponsored conference, consideration is to be given to State-owned facilities and interagency meeting facilities, responsible scheduling, cost effective lodging and meal expenses, awareness of the public perception of state employee activities, and the overall mission of the event.

(1) Meals. Meals that are determined to be an integral part of the conference may be provided if the conference continues to be conducted while the meal is served and consumed. Conference planners may contract for the conference meals at reasonable meal rates and such costs may be included in registration fees for the event. Meals not included in registration fees or not provided as part of the conference will be reimbursable in accordance with 599.619. Meals provided shall not be claimed or reimbursed.

(2) Lodging. Lodging may or may not be negotiated as a part of the conference package. When it is appropriate to contract for lodging, rates will be negotiated in the best interest of the State, at the lowest rate possible to a maximum of $110, and be based only on those individuals who would normally spend the night considering the distance and duration of their travel status as defined in section 599.619.

(b) Non-state sponsored conference or convention.

(1) At the discretion of the appointing power, and if not included in a registration fee or otherwise provided, and subject to the restrictions in item (c), employees may be reimbursed for actual meals and lodging expenses included in the conference, supported by receipts. Meals and lodging not contracted for the event shall be reimbursable at the rates set forth in 599.619.

(2) At the discretion of the appointing power, but in accordance with (c) below, registration fees may be reimbursed totally or in part, based on the State interest being served, the needs of the department and the costs incurred.

(1) Meetings initiated by a department for employees of that same department.

(2) Conference meals that are secondary to the business being conducted, or that are optional, or that are organized for social purposes.

(3) Any activities or expenses related to recreation, sports, entertainment or tourism.

(4) Any expense for alcoholic beverages.

NOTE

Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.

HISTORY

1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).

§599.636. Return of Deceased Employees.

Note • History

When a state officer or employee dies while travelling on official state business, reimbursement may be claimed for actual and reasonable expenses incurred in returning the remains to the place of burial, up to the amount necessary to return the remains to the official headquarters of the deceased. Claims for the reimbursement of such expenses shall be submitted to the State Controller by the person responsible for payment of the funeral expenses. Each claim shall bear a certification by the appointing power that the employee was travelling on official state business at the time of his/her death. Actual costs of the following will be considered necessary travel expenses for which reimbursement will be made.

(a) In all cases, regardless of mode of transportation:

(1) Telephone or telegraph charges for shipment arrangements.

(2) Transportation of the remains to the funeral home, preparing the remains for shipment, not in excess of $1 per 1.6 kilometers (mile) one way.

(b) When a portion of the shipment is by common carrier:

(1) Transportation by common carrier to the receiving point nearest the official headquarters or place of burial, whichever is less.

(2) Transportation not in excess of 50 cents per 1.6 kilometers (mile) one way from a funeral home to a shipping station and from the receiving station determined by paragraph (1) above to the headquarters location or place of burial, as applicable.

(3) Outside transportation case and casket or rental metal transfer case, not to exceed $100 plus taxes.

(c) When shipment is made by funeral coach alone, transportation costs not to exceed 50 cents per 1.6 kilometers (mile) one way, from the pick-up point to the city in which the official headquarters of the deceased was located, or to the place of burial, whichever is the shorter distance.

NOTE

Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Sections 19849.3 and 19463, Government Code.

HISTORY

1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).

2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).

§599.636.1. Return of Deceased Employees--Excluded.

Note • History

When a state officer or employee dies while travelling on official state business, reimbursement may be claimed for actual and reasonable expenses incurred in transporting, in state, the remains to the place of burial, (up to the amount necessary to return the remains) or to the official headquarters of the deceased. Claims for the reimbursement of such expenses shall be submitted to the State Controller by the person responsible for payment of the funeral expenses. Each claim shall bear a certification by the appointing power that the employee was travelling on official state business at the time of his/her death. Actual costs of the following will be considered necessary travel expenses for which reimbursement will be made.

(a) In all cases, regardless of mode of transportation:

(1) Telephone or telegraph charges for shipment arrangements.

(2) Transportation of the remains to the funeral home and preparing the remains for shipment.

(b) When a portion of the shipment is by common carrier.

(1) Transportation by common carrier to the receiving point nearest the official headquarters or place of burial in the state where headquartered.

(2) Transportation one way from a funeral home to a shipping station and from the receiving station determined by paragraph (1) above to the headquarters location or place of burial, as applicable.

(3) Outside transportation case or metal transfer case as required.

(c) When shipment is made by funeral coach alone, reasonable transportation costs for mileage one way, from the pick-up point to the city in which the official headquarters of the deceased was located, or to the place of burial in that state, whichever is designated by the surviving responsible party.

NOTE

Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Sections 19849.3 and 19463, Government Code.

HISTORY

1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).

§599.637. Nonsalaried Assistance; State Personnel Board.

Note • History

(a) When persons provide nonsalaried assistance to the State Personnel Board or to another state department delegated by the State Personnel Board, in the preparation or conduct of written or oral examinations for state civil service, he/she may be reimbursed for necessary travel expenses as prescribed by these regulations for nonsalaried board and commission members.

(b) Meal expenses may be paid by State Personnel Board staff or the staff of the delegated state department. The expense account shall show the name of each person for whom payments were made.

NOTE

Authority cited: Sections 19815.4(d), 19816, 19820 and 19822.5, Government Code. Reference: Sections 19820 and 19822.5, Government Code.

HISTORY

1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).

2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).

§599.638. Expense Account Form.

Note • History

(a) No travel expense account shall be paid unless submitted on a Travel Expense Claim, Standard Form 262 or some other form approved by the Controller. All expense accounts shall be itemized, accompanied by the necessary vouchers and approved by the authorized officer. It is the responsibility of the officer approving the claim to ascertain the necessity and reasonableness of incurring expenses for which reimbursement is claimed.

(b) Expense accounts shall be submitted at least once a month and not more than twice a month. If the amount claimable for any month does not exceed $10, the filing may be deferred until the total amount claimable exceeds $10 or until June 30, whichever occurs first. Travel expenses claimed for July 1 and beyond must be on a separate travel expense claim from those claimed for June 30 or earlier. Expense accounts totaling less than $1 shall not be submitted or paid.

(c) Each officer and employee making a claim for travel expenses must show the inclusive dates of each trip for which allowances are claimed and the times of departure and return. Time of departure and return means the time employee starts from or returns to his/her office or, when leaving on a trip or returning from a trip without going to the office, his/her home.

(d) Each officer and employee must state the purpose of each trip for which reimbursement is claimed, and for each meal for which reimbursement is claimed under Sections 599.622 or 599.623.

(e) Each state officer and employee must show his/her headquarters address and primary dwelling address on the Travel Expense Claim. Employees claiming subsistence expenses pursuant to Section 599.619(b)(1) or 599.621(b)(1), as appropriate, will show their headquarters address as the address of their primary dwelling.

(f) Each claim for the payment of travel expenses shall contain a certification as follows: I hereby certify that the above is a true statement of the travel expenses incurred by me in accordance with Department of Personnel Administration regulations in the service of the State of California, and that all items shown were for the official business of the State of California.

NOTE

Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.

HISTORY

1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).

2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).

§599.638.1. Expense Claim Form--Excluded Employees.

Note • History

(a) No travel expense claim shall be paid unless submitted on a Travel Expense Claim, Standard Form 262 or some other form approved by the Controller. All expense claims shall be itemized, accompanied by the necessary receipts and supporting documentation and approved by the authorized officer(s). It is the responsibility of the officer approving the claim to ascertain the necessity and reasonableness of incurring expenses for which reimbursement is claimed and that the expenses claimed are in compliance with these regulations.

(b) Expense claims shall be submitted at least once a month and not more than twice a month. If the amount claimable for any month does not exceed $10, the filing may be deferred until the total amount claimable exceeds $10 or until June 30, whichever occurs first. Travel expenses claimed for July 1 and beyond must be on a separate travel expense claim from those claimed for June 30 or earlier. Expense claims totaling less than $1 shall not be submitted or paid.

(d) Each officer and employee must state the purpose of each trip for which reimbursement is claimed, and for each meal for which reimbursement is claimed under Sections 599.622.1, 599.623.1 or 599.635.1.

(e) Each state officer and employee must show his/her headquarters address and primary dwelling address on the Travel Expense Claim. Employees claiming subsistence expenses pursuant to Section 599.619.1(b)(1) will show their headquarters address as the address of their primary dwelling.

NOTE

Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.

HISTORY

1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).

2. Editorial correction of subsection (a) (Register 96, No. 38).

Article 3. Valuation of Employee Housing and Services

§599.640. Scope.

Note • History

This article shall apply to all housing accommodations provided by the State to its employees for residence except the following:

(a) Employees while in travel status.

(b) Employees whose pay and allowances are computed according to federal military pay regulations, provided such employees actually do not receive a quarters allowance when assigned to state-owned employee housing.

(d) Accommodations acquired by the State for eventual disposal which are rented to employees on the same basis as to private tenants and are not primarily provided for employee housing.

NOTE

Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19822, Government Code.

HISTORY

1. New Article 3 (Sections 599.640-599.652, not consecutive) filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37).

. CROSS REFERENCE: See Title 2, Chapter 1, Sections 850-868.

§599.641. Definitions.

Note

(a) Housekeeping accommodations are those units of 501 or more square feet which contain regular cooking facilities. Non-housekeeping accommodations are those which do not contain regular cooking facilities, and all units of 500 or less square feet.

(b) Square feet encompasses the entire building area except porches, garages, basements, and attics unless they have been converted to usable living area.

(d) Areas officially set aside as state offices will not be included in the calculation of square feet to compute rental charges.

(e) Housing is in Location Class 1 when it is within 25 miles and not more than 40 minutes travel time, one way, of a community with 2,500 or more year-round population. All other housing is in Location Class 2.

NOTE

Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19822, Government Code.

§599.642. Monthly Rates.

Note

(a) The monthly rates for housing units are shown in the following table in accordance with the unit's housekeeping or non-housekeeping arrangement, age, location, and square footage. For the purposes of this section, housing is one year old when constructed and becomes one year older each January 1st.

(b) If one or more utilities are not paid directly by the employee, increase the monthly charge as follows:

Water Fuel Electricity Total

LOCATION Housekeeping 3.50 9.00 9.00 21.50

CLASS 1 Non-Housekeeping 1.75 4.50 4.50 10.75

LOCATION Housekeeping 5.50 15.00 15.00 35.50

CLASS 2 Non-Housekeeping 2.75 7.50 7.50 17.75

(c) When essential housing is substandard, the Department of Personnel Administration may reduce the rental rate to a lower category.

(1) Housing is essential if an employee is required to live in the unit for the protection of state property or a closely related purpose.

(2) Essential housing is substandard when at least one of the following conditions exists:

(A) Privacy: the normal household routine is repeatedly interrupted.

(B) Reliability and adequacy of utility service: light, heat and/or water are not available in sufficient quantities throughout the year to permit a normal household routine.

(D) Disturbing noises or offensive odors: the normal household routine is repeatedly interrupted.

(E) Overall design: inconvenient arrangement of living quarters.

(F) Seasonal inaccessibility: the employee may leave the premises only if willing to travel under dangerous conditions during a typical season.

(G) Extreme isolation: the residence is located at least 50 miles or one hour travel time from the nearest community of at least 2,500 population.

(d) Notwithstanding the other provisions of this section, the monthly charge for a housing unit shall be at least $16.00. This does not apply to dormitory accommodations.

NOTE

Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19822, Government Code.

§599.643. Dormitory Accommodations.

Note

(a) A dormitory is a housing unit:

(1) Occupied by two or more unrelated employees, or

(2) Which must be vacated monthly to accommodate a relief employee, or

(3) Unsuitable for housing dependents of employees, or

(4) Which provides sleeping accommodations for more than one employee in a single room.

(b) The monthly rate for each available accommodation shall be:

(1) $18 per month in Location Class 1

(2) $12 per month in Location Class 2

(1) Forest fire lookout stations shall have no rental charge.

(2) Employees occupying dormitory accommodations for any day, or any portion thereof, when occupancy of the dormitory is required by the job and is necessary for availability and/or reduced response time to maintain public safety will not be required to pay rent for that day.

(3) Employees occupying dormitory accommodations for less than a complete pay period shall pay $.75 per day to a maximum of $18 per month in Location Class 1 or $.50 per day to a maximum of $12 per month in Location Class 2.

NOTE

Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19822, Government Code.

§599.644. Monthly Rental and Utility Rates-- Nonrepresented Employees.

Note • History

(a) State-owned housing units consist of: houses, apartments, dormitories, mobile homes, trailers, mobile home pads and trailer spaces. The Department of Personnel Administration shall be the final authority for determining the monthly rental and utility rates for all state-owned housing. However, the Department of Personnel Administration may delegate the rate setting authority to appointing powers that possess state-owned housing units.

(b) The Department of Personnel Administration may review and adjust the monthly rate of any state-owned housing unit when there is evidence presented that the prescribed monthly rate is inequitable.

(c) At the direction of the Department of Personnel Administration, and pursuant to its delegation of such statutory authority, the appointing powers shall review the monthly rental and utility rates every year and report the rates to the Department of Personnel Administration.

(d) When essential housing is substandard, the appointing power may reduce the rental rate.